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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Supreme Court Rules Against Kansas Inmates in Death Penalty Case

Jonathan and Reginald Carr
Jonathan and Reginald Carr
WASHINGTON — The Supreme Court ruled on Wednesday against three Kansas inmates whose death sentences had been vacated by the state’s Supreme Court.

The vote was 8 to 1, and Justice Antonin Scalia’s majority opinion was notable for its extended account of the crimes committed by two of the inmates, the brothers Jonathan D. and Reginald D. Carr.

The decision concerned sentencing procedures and did not make a major contribution to the court’s death penalty jurisprudence. The justices returned the case to the Kansas Supreme Court, which may again vacate the death sentences.

Justices Stephen G. Breyer and Ruth Bader Ginsburg, who had suggested in June that the death penalty may violate the Eighth Amendment’s ban on cruel and unusual punishment, joined Justice Scalia’s opinion without comment.

Justice Sonia Sotomayor dissented, saying there had been no reason to hear the case.

“The Carr brothers committed acts of ‘almost inconceivable cruelty and depravity,’ ” she wrote, quoting Justice Scalia, “and the majority is understandably anxious to ensure they receive their just deserts.”

“The standard adage teaches that hard cases make bad law,” she added. “I fear that these cases suggest a corollary: Shocking cases make too much law.”

In 2000, in a series of terrible crimes that came to be known as the Wichita Massacre, the Carr brothers broke into a home where five people were staying and forced them to strip naked and perform sex acts on one another. The brothers then raped the women in turn. Then they drove all five victims, still naked or partly clothed, to a snowy field, where they shot them execution-style in the backs of their heads as they knelt.

One woman survived, spared when a bullet was deflected by her hair clip. After she was shot, the brothers ran over her in a pickup truck.

Naked and barefoot, the woman ran for more than a mile through snow and barbed wire to seek help.

The brothers returned to the woman’s home, ransacked it for valuables and beat her dog to death with a golf club.

There were two issues in the three consolidated cases decided Wednesday, Kansas v. Jonathan Carr, No. 14-449; Kansas v. Reginald Carr, No. 14-450; and Kansas v. Gleason, No. 14-452.

The first, concerning jury instructions, was pressed by the brothers and a third inmate, Sidney Gleason, who was convicted in a separate killing, a double murder.

Capital trials have two phases. After a conviction, juries weigh aggravating factors against mitigating ones to decide whether the death penalty or a lesser sentence is warranted. The inmates’ juries were told they had to find the aggravating factors beyond a reasonable doubt, but the jury instructions were silent about the standard of proof for the mitigating factors.

The inmates said their juries should have been told in so many words that the beyond-a-reasonable-doubt standard did not apply to the mitigating factors.

Justice Scalia wrote that the instruction was not required and would not make much sense, as juries may consider any factor they like in deciding whether leniency is warranted. “It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more likely than not deserve it,” he wrote.

The brothers, who were tried together, also argued that their sentencing hearings should have been held separately, as mitigation evidence offered by one may have hurt the other. Jonathan, for instance, argued that he had acted under the corrupting influence of Reginald, who is his older brother.

Justice Scalia rejected that argument, too. “Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events,” he wrote.

“Better that two defendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury,” Justice Scalia wrote.

He added that the horror of the brothers’ crimes outweighed any possibility that they were prejudiced by being sentenced together.

“Only the most extravagant speculation,” Justice Scalia wrote, “would lead to the conclusion that the supposedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair.”

Source: The New York Times, Adam Liptak, January 20, 2016

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