In Cold Blood

A week after their decision in Hurst v. Florida, the Supreme Court handed down a decision in three cases with a similar topic to the one in Hurst: juries and the death penalty.

In Kansas v. Gleason and the two cases named Kansas v. Carr (involving two brothers), the Supreme Court was asked to reverse decisions by the Supreme Court that overturned the trio’s death penalties for less substantive reasons.

In the Gleason case, Sidney Gleason and a couple other people robbed an elderly man but, thinking her to be untrustworthy, he murdered his co-conspirator and her husband. Meanwhile, the Carr case involved a brutal series of murders, rapes, and forcing sexual acts between victims. The Carrs became known as the perpetrators of the Wichita Massacre, a series of crime too despicable to reproduce here in full. 

All three received the death penalty in their trials, but they appealed the decisions to the Kansas Supreme Court, which overturned their sentences.

If you recall, Hurst v. Florida partially involved the aggravating and mitigating factors in death penalty sentencing. When the jury is tasked with determining the appropriate sentence for the defendant, if the death penalty is a possible sentence, they are tasked with balancing aggravating factors, factors that make the death penalty more palatable, like if the crime was pre-meditated or if it was especially heinous, and mitigating factors, factors that make the death penalty less just.

The jury is instructed to find aggravating factors beyond a reasonable doubt and weigh them against the mitigating factors “found to exist.” The first question asked in these cases was whether that instruction was clear enough. In other words, could the jury have thought that they needed to prove mitigating factors beyond a reasonable doubt? 

If juries are not affirmatively instructed how to find mitigating factors, argue the defendants, they may feel dissuaded from considering mitigating factors – factors that are more subjective and are thus harder to definitively prove “beyond a reasonable doubt” – which may make the death penalty artificially more likely. Gleason and the Carrs contend that violates their Eighth Amendment protection against cruel and unusual punishment. The Kansas Supreme Court agreed, writing in its majority opinion that failure to specify the burden of proof for evaluating mitigating circumstances created a “barrier to consideration,” which is prevented by the Eighth Amendment.

The Kansas Attorney General responded by arguing that lesser standard for proving mitigating factors could be deduced in the context in which the guideline was read. The Kansan AG further argued that the Eighth Amendment does not require the standard be specified to the jury. He advocates that, instead, the Court should evaluate whether the jury wrongly heeded the jury instruction, leading it to refrain from considering important evidence. Only if that was the case would the Court be able to agree with the Kansas Supreme Court in overturning the criminals’ sentences.

Gleason made another argument in the brief: the Kansas Supreme Court decision ought to be seen as applying state law, not federal law, which would mean the U.S. Supreme Court had no jurisdiction to hear the case because the case was made entirely on state law. That was decided in the case Michigan v. Long.

The liberal Justices quickly seized on this point in oral argument but mostly to no avail. It immediately seemed clear that the Kansas Supreme Court had relied on federal law to, as Justice Alito phrased it, avoid responsibility for its decision. Both the Court’s liberal and conservative wings expressed doubt at the three’s position. Justice Kagan argued that it was unfortunate for the specific phrasing to have been used, but the state thankfully changed its codified procedures to make the instructions more user-friendly. She also thought the instructions given to the jurors by the lawyers in their closing arguments was sufficiently clear to avoid any confusion. Justice Ginsburg said the other distinctions listed to the jury between aggravating and mitigating factors makes clear the two are completely different and thus are evaluated differently.

Unsurprisingly, the more conservative wing was even stauncher in their opposition to the trio of criminals. Justice Alito argued “less is more” – to stuff the instructions with endless explanations of the burdens of proof of the different factors would only cause more confusion. The late Justice Scalia weighed into the political landscape of Kansas’s judicial elections, contemplating the largely (and annoyingly) irrelevant question of whether the Kansas Supreme Court was following the wishes of the Kansas public, a claim largely debunked here. Scalia also cited a maxim: the inclusion of one thing excludes the other. This is common sense, he argued. Justice Sotomayor expressed her disdain for his logic; Justice Scalia may be familiar with the maxim, but it’s unlikely an average person on a jury would be (and to her credit, I still don’t understand this maxim. Is it not possible, certainly not excluded from all logical reasoning, that mitigating factors would have to be proven beyond reasonable doubt? Is that not within the realm of possibility?).

In fact, Sotomayor seemed to be the only Justice in support of Gleason and the Carrs. After the Kansas Attorney General cited precedent, Sotomayor doubled down on the unfairness of American death penalty jurisprudence: “What a wonderful system we’ve created. Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them. And when they are wrong on a legal conclusion applying our test, we jump in and reverse them.” In other words, the deck is stacked against criminals and the Supreme Court is only hurting.

In the second question, this one only with the Carrs, the Court agreed to dive into the question of individualized sentencing hearings. The Eighth Amendment right to individualized sentencing hearing could mean two things: if individuals are tried together (as the Carrs were), are the juries simply instructed to evaluate the two separately or is the entire process separated for both: two different hearings altogether?

The Kansas Supreme Court, agreeing with the brothers’ claims that being joined for a sentencing trial would be disadvantageous to both, overturned their death penalties. The younger of the two brothers, Jonathan, claimed that his brother was a corrupting influence, which would “unfairly” assign more respective guilt to Reginald. The Kansas Attorney General argues that separated sentencing hearings are not required in capital cases and, in fact, the criminal justice system benefits from joined hearings. That way, the system avoids inconsistent verdicts and enjoys the benefits of efficiency.  The hearings should be separated only if there is “actual and substantial prejudice” against the brothers from the joint proceedings. That’s a high standard and the Kansan Attorney General tried to persuade the Court that that wasn’t the case here.

Oral argument on this question, another hour after the first part of the case, with Gleason, further revealed the Justices’ discontent with the duo’s argument. Justice Scalia, tough on crime and bitingly realistic at times, argued that sentencing the two together or separately would result in the same sentence because their crimes were so vile. Justices Kennedy and Roberts touted joint trial and sentencing systems. Kennedy warned of the risk of inconsistent results by different juries, Roberts of the tactical advantages the second defendant could enjoy from seeing the evidence and strategy used the state in the first’s case, and Breyer of the potential for an open floodgate of cases that would need two or more sentencing hearings, which would swarm the courts’ dockets.

 The Court decided the cases in January on an 8-1 vote. Justice Scalia wrote the majority opinion. First, he dispelled with the Michigan v. Long federal/state distinction. A state, he wrote, can experiment with its own law and adopt federal law, but it cannot experiment with federal law. Second, he moves on to the mitigating factors question. Mitigating factors are, at their core, judgment calls, while aggravating factors are always more objective. That alone should indicate that one requires a burden of proof of beyond reasonable doubt while the other does not, simply because one cannot find an opinion beyond a reasonable doubt. Scalia dives into the specifics: the case law does not require the specific jury instructions. The jury was told to weigh aggravating factors against mitigating factors “found to exist,” a mere standard that is less stringent than that for aggravating factors. Last, jurors don’t comb over words and engage in deep debates over their meaning; they are not lawyers.

On the severance question, Scalia easily argues that the jurors were expressly told to evaluate the brothers’ sentences individually. There is no reason to believe the jury wouldn’t be able to follow those instructions. Scalia then goes on to tout the benefits of joint trials. Juries are able to evaluate the defendants against one another, assigning relative culpability. There’s also no reason to think the jury was unable to fairly determine each brother’s sentence; the Carrs are merely speculating. Last, the brothers’ actions were so extreme that they would have received the death penalty regardless of how they were evaluated.

Only Justice Sotomayor dissented. Sotomayor, who is quickly becoming the chief defender of criminals, argues that the Court should have dismissed the cases as improvidently granted. She contends that the Court had no jurisdiction to hear the cases. Kansas didn’t violate the constitution; it was overprotecting its citizens, hardly warranting federal intervention. States must be the labs of experimentation. She writes that taking a case to reverse a state’s protection of its citizens’ rights sets a dangerous precedent: we could undermine key rights and discourage states from adequately protecting their citizens. Briefly, on the aggravating and mitigating factors question, she argues the distinction would not be so obvious to a juror and the differences between aggravating and mitigating factors are not as stark as the majority contends. Mitigating factors may be more subjective, but aggravating factors are not entirely objective: whether a crime is “especially heinous,” definitely an aggravating factor, is a clear example.

Sotomayor moves to the severance question. This, too, halts federalist experimentation. The majority opinion spends considerable space defending joining sentencing trials without offering any evidence or any real reason why that can be the constitutional basis for a decision (remember, the decision was written by Scalia, the “originalist”). Sotomayor, citing Ohio, Georgia and Mississippi, all of which default to severing the sentencing trials by defendant, argue that by proscribing policy solutions, the majority is encouraging those states to change their sentencing systems, removing their freedom to experiment. Sotomayor re-enters the Michigan v. Long debate. The federal constitution is a floor, not a ceiling. Rather than seen as a limit of what states can do to protect their citizens, we should view it as a set of basic standards for what they can do, and they should be allowed to protect their citizens even more. Sotomayor ends with a haunting summary: “Shocking cases make too much law.”

At the start of OT 2015, one couldn’t be faulted for thinking this would be the year of the death penalty. After coming to a 5-4 decision in Glossip v. Gross at the end of the last term, the Court heard four death penalty cases this year. And while Hurst resulted in a dismantling of Florida’s death penalty scheme, the Kansas cases upheld certain criminal procedures in that state, protecting the death penalty. Even Justices Breyer and Ginsburg, who signaled last year in Glossip v. Gross that they may be willing to rule the death penalty unconstitutional, joined the majority in these cases. It just goes to show that these changes in our laws happen over time.

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