January 29, 2016
Private: Kansas v. Carr: Procedure and the Death Penalty at the Supreme Court
Jessica Pezley
by Jessica Pezley, Judicial Clerk, Oregon Circuit Courts
The debate over the constitutionality of the death penalty took on a renewed vigor last term in Oklahoma’s lethal injection case, Glossip v. Gross, in which Justice Breyer in dissent suggested it “highly likely that the death penalty violates the Eighth Amendment.” While the Court decided 5-4 that Oklahoma’s use of the lethal injection drug midazolam—part one of a three-part drug cocktail meant to numb an individual from the pain caused by the other drugs working to stop the heart—was constitutional, the close vote and impassioned dissent highlighted a growing skepticism of capital punishment in the Court. Flash-forward to this term and the issue was high on the docket with four cases raising procedural questions about the death penalty. Two have since been decided.
First, in Hurst v. Florida the Court deemed unconstitutional a sentencing scheme that charged the judge, and not a jury, with making the ultimate sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the direction the Court would take in its three remaining death penalty cases. Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court voted 8-1 against recognizing additional Eighth Amendment procedural protections. What accounts for this difference? And what do these inconsistent results spell out for the remaining two death penalty cases, Foster v. Chatman and Williams v. Pennsylvania?
In Carr, the Kansas Supreme Court vacated three death sentences—those of the Carr brothers and of Gleason, a defendant in an unrelated case—because of the lower court’s failure to affirmatively instruct the jury that mitigating factors need not be proved beyond a reasonable doubt, and in the case of the Carr brothers, not allowing severance at the sentencing phase of trial. Kansas’s attorney general challenged this decision, and the Court granted certiorari on the question of whether the Eighth Amendment demands the procedural protections recognized by the Kansas Supreme Court.
It became readily apparent that the respondents in Carr were in trouble. Justice Scalia halted oral argument to recount, at length, the grisly details of the Carr brothers’ crime spree, known as the Wichita Massacre. It came as no surprise then, when the opinion for the case was handed down, that Justice Scalia, writing for the majority, used over two pages of his 18-page opinion to again hash out the horrendous facts. In the remaining pages, the Court found little trouble in dispensing with the respondents’ arguments.
The Court first dismissed a jurisdictional objection brought by Gleason that the Kansas Supreme Court decision was based on adequate and independent state grounds. Next, the Court ruled that the instruction originally given at sentencing was sufficient and that “no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt.” The Court, legally dissecting the wording of the original instruction to reach its determination of what a reasonable juror would conclude, confusingly followed said determination with a reminder that jurors do not undertake such detailed analysis of jury instructions.
The Court likewise refuted respondents’ argument that the joint sentencing proceeding for the Carr brothers violated their Eighth Amendment right to an “individualized sentencing determination.” Again pointing out the “almost inconceivable cruelty and depravity” of the crimes, the Court concluded the joint sentencing proceeding was not fundamentally unfair in this instance and suggested instead its benefit in promoting reliability and consistency.
In the lone dissent, Justice Sotomayor did not challenge the majority’s legal conclusions, but instead focused her disagreement on the grant of certiorari. Pointing out the state courts’ unique function as “laboratories for experimenting with how best to guarantee defendants a fair trial,” she feared the Court’s intervention would act to dissuade states from implementing protections above and beyond the constitutionally mandated minimum.
Juxtaposing the result in Carr with recent Court decisions on the death penalty reveals a palpable shift. Justice Breyer, who previously called into question the constitutionality of the death penalty writ large, now sides with the majority. And while the issues did not go to the heart of capital punishment’s validity, it seems unusual, just one week after guaranteeing increased protections in Hurst, that not one Justice argued that Carr’s procedural protections might be constitutionally mandated.
It is possible that the shocking facts of Carr, which Justice Alito described as “some of the most horrendous murders that I have seen in my 10 years here,” are accountable for this result. Undeniably, the facts played a part, with Justice Scalia sparing no effort in his opinion to remind the reader of their horrendous nature. But perhaps equally to blame is the nature of the procedural constitutional issues being raised. Unlike Glossip, which divided the Court 5-4 with a substantive question on “cruel and unusual punishment,” procedural claims tend to be less compelling and pathos-laden than their substantive counterparts. The question of jury instructions and individualized sentencing determinations seem relatively insignificant, especially when presented in a case with such unsympathetic defendants. It is very possible that in Carr, the procedural questions were simply diminished by the overwhelming shadow of the facts.
What do these two different results in Hurst and Carr mean for the two death penalty cases currently pending before the Supreme Court? Both of the yet undecided cases involve questions of procedural protections in capital sentencing. Foster asks whether the Georgia courts erred in failing to recognize racially motivated juror strikes under Batson v. Kentucky. Williams asks whether an appeal judge’s potential conflict of interest rose to the level of constitutional violation.
On their face, both issues—whether it is racial discrimination or bias in the judiciary—seem more cogent than the ones raised in Carr, and neither case involves crimes rising to the level of the Wichita Massacre. But while the death row inmates in Foster and Williams may still have hope in receiving a favorable decision from the Court, one thing is clear: The future of the death penalty at the Supreme Court is anything but certain.