Scalia Is Wrong About Kansas

His speculation that voters would oust judges who “don’t like the death penalty” was dead wrong.

Antonin Scalia, flanked by Perry Smith and Richard Hickock.
Antonin Scalia, flanked by Perry Smith and Richard Hickock.

Photo illustration by Lisa Larson-Walker. Photo by Kevin Lamarque/Reuters, Garden City Police Department.

Truman Capote’s In Cold Blood hit bookshelves in 1965. The magazine series, turned into a book, detailed the grisly murder of the Clutter family and how the crime upended the sleepy prairie town of Holcomb, Kansas. The two men who committed the murders, Perry Smith and Richard Hickock, were hanged a few months before the story’s release. A few months later, on June 22, 1965, Kansas hanged spree killers George York and James Latham. Those executions—which took place 50 years ago—are the most recent executions in Kansas history. Of the 31 states that formally retain the death penalty, only New Hampshire has gone longer without an execution.

Kansas’ lukewarm relationship with the death penalty has a long history. The state abolished the death penalty in 1907, only to reinstate it in 1935. In the 1972 case Furman v. Georgia, the U.S. Supreme Court invalidated the then-existing death penalty statutes, and Kansas did not enact a new death penalty statute until 1994. Of the states that retain the death penalty today, no state took longer to do so than Kansas. In 2010, a Republican-led effort to once again repeal the death penalty fell short by a single vote in the state senate.

Despite this long history of ambivalence and disuse, Justice Antonin Scalia suggested during arguments this month that Kansans “very much favor” the death penalty. His proof? There are nine men on the state’s death row.

There have been more than 1,000 homicides in Kansas in the past decade. How is it possible to infer that Kansans “very much favor” anything that they opt in to less than 1 percent of the time? In 1972, when the court decided Furman, 15–20 percent of homicides resulted in death sentences. Even under those comparatively bloody statistics, Justice Byron White observed how infrequently death-eligible homicides translated into death sentences, and explained that “the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment.”

The Eighth Amendment permits the death penalty so long as it serves a penological purpose and remains consistent with prevailing contemporary norms, so it is troubling when the justices do not seem to possess an accurate conception of how the death penalty is used (or not used) in practice. The bigger problem, though, has to do with the point that Scalia was trying to make.

There are three Kansas death penalty cases pending before the U.S. Supreme Court—Kansas v. Gleason, Kansas v. Jonathan Carr, and Kansas v. Reginald Carr. The Kansas Supreme Court reversed the death sentence in each of these cases. In 2013, in Kansas v. Cheever, the U.S. Supreme Court reinstated a conviction and death sentence that the Kansas Supreme Court had vacated. In Kansas v. Marsh, decided in 2006, the U.S. Supreme Court reversed the Kansas Supreme Court’s holding that its state capital punishment statute violated the Eighth Amendment.

Scalia remarked that these decisions by the justices of the Kansas Supreme Court have a common theme: “They don’t like the death penalty.” He then said of the citizens of Kansas: “a retention election that goes before such people would not come out favorably for those justices who create Kansas law that ­­that would reverse these convictions. I’m just speculating, of course.”

This speculation taps into a historical narrative that has played out in other states. In 1986, for the first time in California history, voters ousted three justices on the California Supreme Court, including Chief Justice Rose Bird, after Republican Gov. George Deukmejian spearheaded a campaign to unseat them that focused on their votes to overturn death sentences. One of the campaign ads described a horrific murder and then claimed: “Bird let the killers go free,” even though the defendant had not been released from custody. When Bird died of cancer more than a decade after her ouster, an obituary in the New York Times remarked that in California the name Rose Bird remained a synonym for “soft-on-crime liberal.”

In 1996, Penny White became the only justice ever ousted from the Tennessee Supreme Court. The centerpiece of the campaign against her was a vote she had cast in a death penalty case. The Republican Party created a brochure that urged voters: “Vote for Capital Punishment by Voting NO on August 1 for Supreme Court Justice Penny White.” The brochure first discussed a brutal murder that resulted in a death sentence and then said: “Penny White felt the crime wasn’t heinous enough for the death penalty—so she struck it down.” As it turns out, White had voted with the majority of the court to reverse the death penalty on grounds that had nothing to do with the heinousness of the offense.

Would the fate of Rose Bird and Penny White repeat itself, as Scalia speculated, if Kansas Supreme Court justices had to answer for their votes in capital cases during their next retention election? Unbeknownst to Scalia, this was not just a hypothetical question.

Sam Brownback became the governor of Kansas in 2011, and in his first term, the ultra-conservative, pro-life, anti-same-sex marriage former U.S. senator enacted sweeping tax cuts and refused to accept federal dollars to establish health insurance exchanges. These cuts created a budget nightmare, and a Kansas Supreme Court decision requiring the state to pour more money into public education turned Kansas’ fiscal outlook more dire. With his first term in office shaping up to be an unmitigated disaster, Gov. Brownback ran for re-election on a promise to oust liberal judges and “appoint judges who will interpret the law, not rewrite it as they choose to see it.”

Jonathan and Reginald Carr, whose cases the U.S. Supreme Court heard this month, became the focal point of Brownback’s attack ads. The Carr brothers killed five people in Wichita in what has become arguably the most salient homicide in Kansas since the murders of the Clutter family in Holcombe back in 1959. “Like all Kansans, I was stunned by today’s Supreme Court ruling regarding the Carr brothers conviction for a particularly brutal and heinous crimes,” Gov. Brownback wrote following the Kansas Supreme Court decision in the case, “They were convicted by a jury of their peers in front of an elected local judge. Today’s ruling unnecessarily reopens wounds of a tragic moment in Wichita’s history.

Kansas Supreme Court Justices Erik S. Rosen and Lee Johnson, both of whom voted to grant new sentencing hearings for the Carr brothers, became the judges to target. The governor released a TV ad that focused on the brutality of the crime and referred to the “liberal judges who let the Carr brothers off the hook.” Nola Foulston, the prosecutor who secured the death sentences against the Carr brothers, called the ad “reprehensible” and questioned whether Brownback, as “an attorney bound by the Rules of Professional Responsibility, has forgotten his legal obligations in a political last ditch effort to recklessly undercut the qualifications and integrity of the Kansas Supreme Court.”

In addition to the governor, an independent group, Kansans for Justice, also made a pointed attack on Rosen and Johnson: “Your Kansas Supreme Court justices are using their political beliefs to rule against sound court cases. On November 4th, vote No and remove Kansas Supreme Court Justices Eric Rosen and Lee Johnson from the bench.”

This was the primary image associated with the Kansans for Justice campaign:

The Kansans For Justice campaign sent out a form letter that supporters could use to urge others to vote against the judges. It said in part:

I’m certain some of you remember the horrific crimes committed by the Carr brothers. … What you may not know is that in July 2014 the Kansas Supreme Court overturned these sentences due to a technicality. … Two of the justices who voted to overturn these convictions will be on the Kansas ballot Nov. 4. This is a retention vote, so the question will ask you if you’d like to retain Justices Eric Rosen and Lee Johnson. I am asking you to consider voting “no.”  

A curious thing happened at the polls in November 2014, though. Despite widespread media attention focused on the most horrifying details of the homicides that the Carr brothers committed, a governor who declared war on liberal judges, and an independent organization that took direct aim at the justices over their decisions in capital cases, both Erik Rosen and Lee Johnson retained their seats on the Kansas Supreme Court.

It appears that Kansans do not “very much favor” the death penalty after all.

This is not a Kansas-specific phenomenon. Support for the death penalty has sharply declined nationally over the past 15 years. More importantly, though, the intensity with which people support the death penalty appears to have subsided significantly.

Consider, for instance, a recent poll that showed that only 3 percent of Colorado voters rank the death penalty as the issue that “matters most” when deciding on how to vote for a gubernatorial candidate. Or consider that four sitting governors openly refuse to permit an execution to go forward on their watch—Kate Brown in Oregon, John Hickenlooper in Colorado, Jay Inslee in Washington, and Tom Wolf in Pennsylvania. The upshot is that the death penalty has lost much of its power as a tool for political fear-mongers to use against elected officials, including judges.

This cultural shift is important for prosecutors, politicians and judges to understand. But whether or not Scalia is right that Kansans would vote out judges who find constitutional error in death penalty cases, he is wrong to even hint that they should. Indeed, Scalia seems to fundamentally misunderstand the role of an independent judiciary charged with preserving the rights of unpopular citizens.

When emotionally charged events happen, including murder, people unsurprisingly tend to react with emotion. We are afraid. We are angry. We want vengeance. Politicians both react to and exploit these emotions. We hear, as Kansans did last election cycle, sound bites on the television or radio about judges letting murderers go free because of some technicality.

Judges are supposed to cut through the chaos and carefully analyze whether a trial complied with the dictates of the law. Constitutional strictures are not some meaningless hoops to jump through. These are the rules that help to ensure that innocent people are not wrongfully convicted. These are the rules that ensure that the punishment fits the crime. If anything, our problem is that these rules are not followed closely enough. When we elect judges—and especially when we make a matter of electoral debate whether we like or dislike a constitutional ruling—we subvert the intended purpose of the judiciary.

What if we turn the question around? Instead of asking whether Kansans should vote out judges who find constitutional violations in capital cases, we should ask a different question: How much of death penalty activity today is attributable to elected judges who arguably do not possess the distance from the rough and tumble of political life that the architects of the Bill of Rights contemplated?

In Alabama, a state where a trial judge can “override” the decision of a jury to return a life imprisonment sentence, 1 in 5 death row inmates were sentenced to death by an elected judge who imposed a death sentence against the will of the jury (including in cases in which the jury unanimously rejected a death sentence). As Justice Sonia Sotomayor recently wrote in a dissent from the Supreme Court’s refusal to hear the case Woodward v. Alabama: “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures,” a fact that floats a “cloud of illegitimacy over the criminal justice system.”

In her opinion, Sotomayor described a judge who ran campaign advertisements about how he had “presided over more than 9,000 cases, including some of the most heinous murder trials in our history, and expressly named some of the defendants whom he had sentenced to death, in at least one case over a jury’s contrary judgment.” This anecdotal evidence from Alabama fits with a recent Reuters study of more than 2,000 death penalty cases decided by the 37 state supreme courts that heard capital cases within the past 15 years. The study concluded that elected judges affirm death sentences more than twice as often as appointed judges, while judges who face retention elections—e.g. justices on the Kansas Supreme Court—land in the middle. This cannot be the handiwork of the impartial judiciary that the drafters of the constitution had in mind.

Justice Scalia might be correct that the Kansas Supreme Court erroneously decided that the Eighth Amendment demands that Reginald and Jonathan Carr receive a new trial. He might even be correct that the justices of the Kansas Supreme Court do not like the death penalty. The proper response to these concerns is for the U.S. Supreme Court to reverse the judgment of the Kansas Supreme Court in individual cases where the federal Constitution compels that result. But it is not the role of the Court to advocate for the further politicization of the judiciary. That’s supposed to be the difference between judges and legislators.

In Kansas, in contrast to Scalia’s speculation, the death penalty seems to have fallen out of favor—a point underscored by both the state’s infrequent resort to the punishment and the failed effort to oust Justices Johnson and Rosen.