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In the three cases before the justices, the Kansas Supreme Court found juries may have discounted mitigating circumstances, such as a history of being abused or mental issues. In each instance, trial judges didn’t tell juries that such factors, which can weigh against the death penalty, don’t require proof beyond a reasonable doubt to be accepted. Prosecutors, however, must prove factors supporting an execution to that strict standard.
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The Kansas court also found that two brothers tried and sentenced together for multiple murders, rapes and other crimes should have had separate sentencing hearings.
The Kansas attorney general argued the state-level rulings should be reversed because they provided the defendants rights beyond what is required by the U.S. Constitution.
“What a wonderful system we’ve created,” said Justice Sonia Sotomayor. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them.”
Justice Antonin Scalia suggested the Kansas Supreme Court, whose justices periodically face retention elections, sought to disguise its own opposition to the death penalty by cloaking its rulings in the U.S. Constitution.
“Kansans, unlike our Justice [Stephen] Breyer, do not think the death penalty is unconstitutional and indeed very much favor it,” he said.
Kansas last conducted an execution in 1965, and the state currently holds nine condemned men. Kansas Attorney General Derek Schmidt said the jury-instruction issue could affect six of them.
Several justices on Wednesday appeared convinced that the Eighth Amendment, which forbids “cruel and unusual punishments,” doesn’t mandate the instruction on mitigating circumstances. Some liberal justices, noting the Kansas judiciary has adopted new jury instructions to clarify the mitigating-circumstances rule, suggested it may be required under state law.
The joint-trial issue proved more vexing. Two brothers, Reginald and Jonathan Carr, were convicted of a crime spree involving robbery, sexual assault and culminating in mass murder.
At a joint sentencing, Jonathan’s lawyer argued he had been corrupted by his older brother. That argument had the effect of prejudiced the jury against Reginald, Reginald’s attorney Frederick Liu told the justices.
An attorney for Jonathan, Jeffrey Green, said his client also was hurt by the sentencing process, as he was seated by Reginald, allowing “prosecutors to repeatedly paint them with the same brush.”
The case raised an apparent contradiction in death-penalty doctrine. While each defendant is entitled to an individualized sentence determination, arbitrary sentencing is forbidden.
Justice Department attorney Rachel Kovner said joint hearings in such instances “prevent arbitrary disparities that may arise when two juries reach inconsistent conclusions about the common facts of a single crime.”
Decisions are expected before July.
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