The United States Supreme Court today decided the case of Kansas v. Carr, along with the companion case of Kansas v. Gleason. The Carr brothers are Kansas's exemplar of why the death penalty is necessary. Their crime spree of robbery, murder, home invasion, and rape is truly a case where any lesser penalty would be a mockery of justice.
Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice. It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature. Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.
In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection. Blurring that distinction is an error, because the two decisions are quite different. The jury instruction issue in this case illustrates the importance of keeping that distinction clear.
Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice. It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature. Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.
And 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." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent. Bravo.
In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection. Blurring that distinction is an error, because the two decisions are quite different. The jury instruction issue in this case illustrates the importance of keeping that distinction clear.
In the pre-1972 system, a very large number of crimes were potentially punishable by death, and the jury received no guidance on how to select which defendants would actually be punished by death. In 1971, the Supreme Court found it "impossible" to say that this violated anything in the Constitution, but in 1972 they found it possible.
The post-1972 laws approved by the Court in 1976 all had two features in common. The class of murderers eligible to be considered for the death penalty is narrowed by the finding of something more than the basic elements of murder, either a higher degree (capital murder in Texas) or a finding of an "aggravating circumstance" (or "special circumstance" in California). These circumstances are required to be reasonably objective. "Especially heinous, atrocious, and cruel" doesn't do it unless those terms are further narrowed by a jury instruction, such as "torturous."
Under Ring v. Arizona, this "something more" must be found by a jury and must be proved beyond a reasonable doubt. Last week's decision in Hurst v. Florida was the result of that state allowing the judge to make the official finding of the aggravating circumstance needed for eligibility, although it was widely misreported as based on the judge making the final sentencing determination.
Kansas does have the jury make this decision, and it does instruct the jury that the aggravating factor must be proved beyond a reasonable doubt. Then the jury proceeds to the selection phase, where it considers whether the aggravating factors outweigh the mitigating factors it may find. Here, Kansas does not instruct on any particular burden of proof, as many states do not. In Gleason and Carr, the Kansas Supreme Court engaged in fanciful speculation that a juror might think that the mitigating circumstances need to be proved beyond a reasonable doubt, and said that speculative possibility violates the Eighth Amendment to the Constitution of the United States.
Nonsense, said eight Justices of the United States Supreme Court. The mitigation phase is designed to be an exercise of subjective judgment, not objective fact-finding. Not only must each juror make his or her own finding of whether a proffered mitigating circumstance is true, but the jurors must also decide whether it is actually mitigating and how much weight, if any, to give it. Talking about burdens of proof may be more confusing than clarifying in this situation.
A second holding in the case is that the U.S. Constitution does not require the Carr brothers' cases to be severed for sentencing. If they point fingers at each other, that provides all the more relevant evidence for an accurate sentencing determination.
Today's decision does not change the law. It confirms what those who properly understand the law -- definitely not including a majority of the Kansas Supreme Court -- have known all along. Confirmation is important, though, in fighting bogus arguments in the state courts and lower federal courts, and today's decision is a very important victory for the cause of justice. The amicus brief for CJLF, the National District Attorneys Association, and the California District Attorneys association is here.
What should the people of Kansas do? Dump their system of choosing state supreme court justices as quickly as possible. In that state, the governor is limited in his appointments to a short list submitted to him by the state bar. In nearly every state, including conservative ones, the state bar is heavily pro-defendant in criminal matters. You might as well let the inmates of a prison elect the warden. There is no perfect method of choosing judges, but the California system is as close to optimum as it gets -- appointment by the governor with periodic yes/no votes by the people.
The post-1972 laws approved by the Court in 1976 all had two features in common. The class of murderers eligible to be considered for the death penalty is narrowed by the finding of something more than the basic elements of murder, either a higher degree (capital murder in Texas) or a finding of an "aggravating circumstance" (or "special circumstance" in California). These circumstances are required to be reasonably objective. "Especially heinous, atrocious, and cruel" doesn't do it unless those terms are further narrowed by a jury instruction, such as "torturous."
Under Ring v. Arizona, this "something more" must be found by a jury and must be proved beyond a reasonable doubt. Last week's decision in Hurst v. Florida was the result of that state allowing the judge to make the official finding of the aggravating circumstance needed for eligibility, although it was widely misreported as based on the judge making the final sentencing determination.
Kansas does have the jury make this decision, and it does instruct the jury that the aggravating factor must be proved beyond a reasonable doubt. Then the jury proceeds to the selection phase, where it considers whether the aggravating factors outweigh the mitigating factors it may find. Here, Kansas does not instruct on any particular burden of proof, as many states do not. In Gleason and Carr, the Kansas Supreme Court engaged in fanciful speculation that a juror might think that the mitigating circumstances need to be proved beyond a reasonable doubt, and said that speculative possibility violates the Eighth Amendment to the Constitution of the United States.
Nonsense, said eight Justices of the United States Supreme Court. The mitigation phase is designed to be an exercise of subjective judgment, not objective fact-finding. Not only must each juror make his or her own finding of whether a proffered mitigating circumstance is true, but the jurors must also decide whether it is actually mitigating and how much weight, if any, to give it. Talking about burdens of proof may be more confusing than clarifying in this situation.
A second holding in the case is that the U.S. Constitution does not require the Carr brothers' cases to be severed for sentencing. If they point fingers at each other, that provides all the more relevant evidence for an accurate sentencing determination.
Today's decision does not change the law. It confirms what those who properly understand the law -- definitely not including a majority of the Kansas Supreme Court -- have known all along. Confirmation is important, though, in fighting bogus arguments in the state courts and lower federal courts, and today's decision is a very important victory for the cause of justice. The amicus brief for CJLF, the National District Attorneys Association, and the California District Attorneys association is here.
What should the people of Kansas do? Dump their system of choosing state supreme court justices as quickly as possible. In that state, the governor is limited in his appointments to a short list submitted to him by the state bar. In nearly every state, including conservative ones, the state bar is heavily pro-defendant in criminal matters. You might as well let the inmates of a prison elect the warden. There is no perfect method of choosing judges, but the California system is as close to optimum as it gets -- appointment by the governor with periodic yes/no votes by the people.
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