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Argument preview: Justices to tackle Eighth Amendment — again

The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment.  The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional.  The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death.  The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain – as they were in the Oklahoma case – sharply divided. 

The facts of tomorrow’s cases do not lend themselves to sympathy for the three inmates.  In December 2000, brothers Jonathan and Reginald Carr went on what lawyers for the federal government describe as “an indescribably brutal crime spree of rapes, robberies, and violence” that left five people dead and a sixth (who survived only because a hairclip deflected the bullet directed at her head from close range) seriously injured.  The Carrs were tried together, found guilty, and sentenced to death.  Sidney Gleason was convicted and sentenced to death for his role in a different double murder; one of the victims had participated with him in the robbery and stabbing of an elderly man, and she was killed (along with her boyfriend) because Gleason and his co-conspirators believed that she had helped the police with their investigation.  On appeal, the Kansas Supreme Court overturned the three inmates’ death sentences.  At the state’s request, the U.S. Supreme Court agreed to weigh in.

The first question before the Court relates only to the Carr brothers, who were sentenced together, and in a sense pits them against each other.  They both argue, and the Kansas Supreme Court agreed, that holding a single hearing to determine whether either or both should be sentenced to death violated their Eighth Amendment right to an individualized sentencing determination.  But for Reginald Carr, this is because his younger brother Jonathan was essentially acting as another prosecutor against him:  in his effort to save his own life, Jonathan put before the jury evidence (which the state itself would not have been allowed to introduce) that actually helped to make the state’s case for a death sentence for Reginald – for example, by portraying Reginald as having been a negative influence on Jonathan.  For his part, Jonathan argues that sentencing him with his brother created too much of a risk that jurors would not be able to consider him separately from his more dangerous brother – whose shackles the jury could see, and whose own expert testified that he was, by virtue of his genetics and childhood, a sociopath.

Kansas (which has the support of the federal government on this issue) counters that courts are not required to hold separate sentencing hearings for defendants in capital cases.  Indeed, it argues, the criminal justice system generally prefers joint proceedings, because they help to avoid “the scandal and inequity of inconsistent verdicts” and are a more efficient use of time and resources.  In any event, the state adds, a decision to hold joint sentencing hearings should only be overturned if a defendant can show “actual and substantial prejudice” from the joint proceedings – an “extremely high standard” that is not met in this case, in which the evidence supporting both brothers’ death sentences was “overwhelming.”

The second question in the case involves the instructions given to the jury before it determined whether death sentences were appropriate for the Carr brothers and Gleason.  At the sentencing hearings, prosecutors presented evidence regarding “aggravating factors,” which are circumstances, defined by the state, that make the death penalty appropriate – for example, that the crime was “especially heinous, atrocious, or cruel.”  The Carr brothers and Gleason presented “mitigating factors,” which are evidence in favor of a sentence other than death – for example, that the defendant had been abused as a child or had expressed remorse for his crime.   The jury was instructed that it should impose a death sentence if it found “unanimously beyond a reasonable doubt” that at least one of the aggravating factors had been satisfied and was “not outweighed by any mitigating factors found to exist.”  The problem, from the inmates’ perspective, is that the jury instructions did not indicate what kind of proof was necessary to find mitigating factors.  Although Kansas law does not require defendants to meet any particular burden of proof for mitigating factors, they complain, the lack of specificity in the instructions might have led the jury to believe that they could only weigh aggravating factors against mitigating circumstances that the defendant had proven beyond a reasonable doubt, which is a difficult standard to meet.  And that, they contend, would deprive them of the opportunity to have the jury consider any mitigating evidence that might be relevant.

Kansas responds that nothing in the Eighth Amendment or the Supreme Court’s cases requires a specific instruction that a defendant does not have to prove mitigating factors beyond a reasonable doubt.  Instead, the only question is whether the jury applied the jury instruction in a way that prevented it from considering relevant evidence.  Here it did not, the state argues, because nothing in the jury instructions barred the jury from considering that evidence, prosecutors focused on the role of the defendants’ mitigating evidence rather than whether that evidence was accurate, and the closing arguments in the sentencing hearings made clear that each juror should consider all of the mitigating evidence.

During tomorrow’s oral arguments, the Justices will hear from seven different lawyers over the course of two hours.  When that time is up, we may know a lot more not only about where the Court might be heading on these relatively technical issues, but also about whether broader issues relating to the death penalty will remain front and center this Term or will instead simmer below the surface until they are directly before the Court.

Recommended Citation: Amy Howe, Argument preview: Justices to tackle Eighth Amendment — again, SCOTUSblog (Oct. 6, 2015, 9:05 PM),