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Opinion analysis: Few sparks, eight votes for the state in Kansas capital cases

In recent years, issues relating to the death penalty have often been an acrimonious topic at the Supreme Court. In June of last year, the Justices ended their 2014-2015 Term by upholding Oklahoma’s lethal injection protocol, but four Justices dissented from that decision – including, most notably, Justice Stephen Breyer, who suggested that the death penalty itself may be unconstitutional. Although the Justices may be deeply divided in some death penalty cases, that’s not necessarily true for all of them, as demonstrated by today’s eight-to-one opinion (with Justice Sonia Sotomayor as the lone dissenter) in a set of cases involving the procedures used by the state of Kansas to sentence three inmates to death.

Two of the inmates, brothers Jonathan and Reginald Carr, were sentenced to death after a multi-day crime spree in December 2000 that can only be described as truly horrific. A few years later, Sidney Gleason was convicted of (among other things) two counts of capital murder and sentenced to death, but the Kansas Supreme Court overturned all three inmates’ death sentences in 2014.

The first of two main issues before the Court stemmed from the instructions given to the juries that sentenced the Carr brothers and Gleason. At a sentencing hearing in a capital case, prosecutors can present what are known as “aggravating factors” – circumstances, such as the heinous nature of the crime, that make it appropriate to impose the death penalty. For their part, defendants can present what are known as “mitigating factors” – evidence in favor of sparing their lives. The juries in both trials were told that they should impose a death sentence if they 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 Carr brothers and Gleason argued, and the Kansas Supreme Court agreed, that the trial courts should have made clear that, although aggravating factors must be proven beyond a reasonable doubt, mitigating factors do not have to be – so that the jury should have been more willing to find that there were reasons not to impose the death penalty. The failure to tell that to the jury, they contended, created the possibility that the jury would be confused and would not take all of the mitigating evidence into effect.

The Court, in an opinion by Justice Antonin Scalia, found no such confusion. Observing that its earlier decisions would not require such an instruction, the Court began by expressing doubt that “it is even possible to apply a standard of proof to the mitigating-factor determination.” Although there is a standard of proof for aggravating factors, the Court explained, “that is a purely factual determination” – “the facts justifying death set forth in the Kansas statute either did or did not exist.” But mitigating factors, the Court reasoned, are “largely a judgment call (or perhaps a value call).”

And turning to the instructions in these cases, the Court saw little ambiguity. If anything, the Court suggested, the jury instructions made clear that aggravating circumstances needed to be proven beyond a reasonable doubt, as did “the conclusion that they outweigh mitigating circumstances.” But by contrast, the jury was instructed only that mitigating circumstances “must merely be ‘found to exist’” – which, the Court emphasized, is hardly the same thing as “beyond a reasonable doubt.”

The other main question before the Court related only to the Carr brothers. They argued, and the Kansas Supreme Court agreed, that holding a joint sentencing hearing to decide whether either or both of them should be sentenced to death violated their Eighth Amendment right to an individualized sentencing determination.   In essence, this boils down to an argument that each brother was prejudiced by having his fate considered at the same time as the other’s: Reginald asserted that Jonathan had introduced evidence that made him look bad (for example, by depicting Reginald as a negative influence on Jonathan), while Jonathan argued that the joint hearing created too much of a risk that the jurors would not be able to consider him separately from Reginald, whose own expert witness characterized him as a sociopath.

Citing all of the evidence presented both at trial and sentencing, the Court didn’t simply reject the Carr brothers’ argument, but dismissed it as “beyond the pale.” The jurors were instructed to consider the two brothers separately, the Court stressed, and there is no reason to believe that they didn’t follow that instruction. And in any event, the Court added, joint proceedings are “not only permissible but are often preferable” in cases that, like this one, stem from “a single chain of events,” because they allow the jury to assign responsibility for the crimes more fairly. In an almost incredulous tone, the opinion suggested that, in light of the “almost inconceivable cruelty and depravity” of the brothers’ crimes, it is “beyond reason to think that the jury’s death verdicts were caused by the identification of Reginald as the ‘corrupter’ or of Jonathan as the ‘corrupted.’”

The Court made quick work of a challenge, raised by Gleason, to its authority to review the cases at all. Gleason had contended that, because the Kansas Supreme Court rulings vacating his death sentence and those of the Carr brothers had relied on Kansas (rather than federal) law, the U.S. Supreme Court lacked jurisdiction to hear the case. “The Kansas Supreme Court’s opinion,” the Court ruled, “leaves no room for doubt that it was relying on the Federal Constitution.” In her solo dissent, Sotomayor countered that in throwing out the death sentences the Kansas Supreme Court “has not violated any federal constitutional right” and suggested that the Court’s decision to review the case amounted, in effect, to meddling with the state’s affairs. “By placing a thumb on the scale against a State adopting—even as a matter of state law—procedural protections the Constitution does not require,” Sotomayor asserted, “the Court risks turning the Federal Constitution into a ceiling, rather than a floor, for the protection of individual liberties.” Scalia and the Court retorted that, “when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, ‘review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.’”

In a press release reacting to today’s ruling, Kansas Attorney General Derek Schmidt indicated that the cases “will now return to the Kansas Supreme Court, which will determine whether additional proceedings are necessary.” And although this round of the larger debate within the Court over the death penalty lacked the fireworks that we have come to expect, the relative calm probably stems from the fact that the Justices were considering procedural issues that don’t go to the heart of the death penalty, in a set of cases that involve unusually brutal crimes and come from a state supreme court that at least some Justices regard as overly solicitous to inmates. Many future cases are sure not to be so harmonious.

Recommended Citation: Amy Howe, Opinion analysis: Few sparks, eight votes for the state in Kansas capital cases, SCOTUSblog (Jan. 20, 2016, 2:32 PM),