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Argument analysis: Kansas inmates find skeptical audience at the Court

After two hours of oral arguments this morning in a trio of Kansas death penalty cases, one thing seemed clear:  a solid majority of the Justices appeared ready to reverse rulings by the Kansas Supreme Court that had overturned the inmates’ death sentences.  What was less clear, however, was what effect such a ruling would ultimately have.

The Court devoted the first hour to the three inmates’ challenges to the instructions given to the juries that sentenced them.  The trial court’s failure to make clear in the instructions that they did not need to prove mitigating circumstances — evidence that might sway the jury to spare their lives — beyond a reasonable doubt, they argued, risked confusing the jury and preventing it from taking all of that evidence into consideration.  Although some of the Court’s more liberal Justices tried to explore the possibility that the Kansas Supreme Court had relied on state law, rather than the federal Constitution, to rule in the inmates’ favor (which would preclude the U.S. Supreme Court from weighing in), they did not make much headway.  Turning to the substance of the inmates’ argument, former Acting Solicitor General Neal Katyal (representing inmate Reginald Carr) made an impassioned plea for his client’s life.  “A man is being put to death,” Katyal emphasized, because the jury instructions used at his trial were so confusing.  And although the death penalty is supposed to be reserved for the “worst of the worst,” Katyal added later, in this case the death penalty would be imposed because his client had the worst jury instructions.

Katyal’s efforts, although valiant, seemed to fall mostly on deaf ears, as epitomized by Justice Elena Kagan’s take on the question before the Court.  She agreed with the inmates that the instruction was “unfortunate” — adding that she could understand why Kansas had later changed the instruction to make it clearer — but she focused more on the big picture.  She observed that the instructions given to the jurors not only also allowed them to consider mercy for the defendants but also contained a “catch-all” instruction that allowed them to consider any other information that might tilt the balance in favor of the defendant and away from the death penalty.  Moreover, during their closing arguments prosecutors specifically discussed the role of jurors in considering all of the evidence that had been presented to them.  Given all of that, she suggested, doesn’t it seem likely that the jurors would not have actually been confused?

Justice Ruth Bader Ginsburg, whose vote the inmates would almost certainly need to prevail, also seemed dubious about the likelihood of confusion.  The instructions, she noted, drew other distinctions between mitigating circumstances and the aggravating factors that the jury would need to find beyond a reasonable doubt to consider a death sentence:  the jurors would need to agree unanimously on aggravating factors, while no such unanimity was required for mitigating factors.  And that, she implied, would also reduce any risk that jurors would reflexively assume that they needed to apply the same burden of proof to mitigators and aggravators.

Justice Samuel Alito, one of the most pro-prosecution Justices on the Court, didn’t seem to see any problem with the instructions as they were given to the juries. If he were on a jury, he told Katyal, and was told that mitigating circumstances do not need to be demonstrated beyond a reasonable doubt, then he would wonder what the standard actually was. This, he suggested, may be “a situation where less is more.”

Brothers Reginald and Jonathan Carr’s chances of prevailing on the second question before the Court – whether their constitutional rights to have the jury make individualized decisions about their sentences was violated when they were sentenced after a joint hearing – also seemed fairly bleak. Some Justices – most notably Justice Antonin Scalia, who read a lengthy and detailed account of the Carr brothers’ crimes – appeared unconvinced that it would have mattered whether they were sentenced together or separately. Responding to Reginald Carr’s argument that the joint hearing allowed jurors to hear Jonathan Carr’s efforts to portray his older brother as a bad influence, Scalia asked Reginald Carr’s lawyer incredulously: “You truly think that this jury, but for the fact that your client was a corruptor, would not have imposed the death penalty?”

Other Justices emphasized the benefits of joint trials and sentencing hearings. Justice Anthony Kennedy, for example, noted that having separate juries for each defendant could lead to inconsistent results, while Chief Justice John Roberts suggested that, if a court holds two separate proceedings, the defendant who goes second might enjoy a tactical advantage because he will be able to see the evidence and strategy that the state uses against the first defendant. Even Justice Stephen Breyer, who in June voiced his belief that the death penalty may be unconstitutional, expressed concern that requiring separate sentencing hearings in this case might prompt other defendants to demand their own separate hearings, opening the floodgates in dozens or even hundreds of what he described as “ordinary cases” involving gangs or drugs in which joint proceedings are very common.

Even if the state prevails on both questions, as it appears it might, what happens next remains an open question. In overturning the Carr brothers’ death sentences, the Kansas Supreme Court also found a violation of the brothers’ Sixth Amendment right to confront the witnesses against them during the joint sentencing hearing. The state asked the U.S. Supreme Court to weigh in on that issue as well, but it declined to do so when it granted review earlier this year. This means that, even if the Court agrees with the state that the Kansas Supreme Court was wrong to order new, separate sentencing hearings for the Carr brothers, they would still be entitled to resentencing on a different ground. Add to that the prospect that, when the cases return to the Kansas Supreme Court, that court might issue a new ruling in the inmates’ favor based on Kansas law, and you have a real possibility that, as Justice Ruth Bader Ginsburg suggested, the U.S. Supreme Court’s ruling could still “lead to the same bottom line.”

Unlike last Term’s oral argument and opinion announcement in Glossip v. Gross, the challenge to Oklahoma’s lethal injection protocol, there were relatively few fireworks in the Courtroom this morning. That said, there were occasional signs of the tension between the Justices on the broader issue of the death penalty. In addition to his recitation of the gruesome facts of the Carr brothers’ cases, Justice Antonin Scalia also worked in a jab at Justice Stephen Breyer, pointing out that the presence of several inmates on death row in Kansas suggests that “Kansans – unlike Justice Breyer – do not think the death penalty is unconstitutional.” And Justice Sonia Sotomayor, perhaps the Justice who is the most protective of the rights of criminal defendants, jumped in quickly when Justice Scalia suggested that the meaning of the jury instructions was so clear and “such common sense that there is a maxim” about it. Without giving Kansas Attorney General Derek Schmidt an opportunity to respond, Sotomayor spoke directly to Scalia, telling him coolly, “I doubt any juror has heard that maxim.”

Will these tensions build next week, when the Justices hear oral arguments in another case involving the Eighth Amendment and the death penalty, this time out of Florida? Stay tuned.


Recommended Citation: Amy Howe, Argument analysis: Kansas inmates find skeptical audience at the Court, SCOTUSblog (Oct. 7, 2015, 7:34 PM),

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