Supreme Court Dispatches

The Justices Are Irked With One Another Over the Death Penalty

Two cases from Kansas bring out their irritation.

Justices Antonin Scalia and Sonia Sotomayor.

Photo illustration by Lisa Larson-Walker. Photo by Darren Ornitz/Reuters, Jonathan Ernst/Reuters.

Supreme Court justices are rarely on good behavior when they are debating how the government should kill people. As much as they may brag about their collegiality and thick skins, the justices tend to go into beast mode when capital punishment is involved. Antonin Scalia delivers improvised rants from the bench. Clarence Thomas pens mini-biographies of murder victims to justify his biblical sense of revenge. Samuel Alito maligns the lawless “guerrilla war” to block states from obtaining drugs for lethal injection. (Damn that notorious guerrilla warrior, the European Union, for embargoing death drugs.) And the liberals take out their righteous fury on poor state attorneys who just want to get an execution or two under their belt.

On Wednesday, the court heard its first capital punishment case since last term’s Glossip v. Gross, a high-profile lethal injection case that began and ended with a collective convulsion of rage. This time around, the stakes are as low as they can be in a case that may well end with the state forcing toxic chemicals into a prisoner’s bloodstream until his heart stops beating. But throughout two hours of oral arguments, the justices repeatedly used the case to re-wage the ugly battles they fought in Glossip.

Wednesday’s arguments combined two cases out of Kansas to answer two constitutional questions. The first involves mitigators—those factors a capital defendant can put forward during sentencing to persuade the jury to spare his life. (Child abuse is one of the most common mitigators, since an astonishing number of convicted murderers were horrifically abused as children.) Capital defendants have a right under the Eighth Amendment to present mitigators to the jury. But the prosecution can present aggravating circumstances to demonstrate that the defendant is so depraved or unrepentant that he deserves to die.

In Kansas, aggravating circumstances must be proved beyond a reasonable doubt. Mitigators don’t: A defendant need only present them, not prove them. But the jury instructions used in two capital trials failed to explain this critical distinction. Instead, the instructions implied that both aggravating circumstances and mitigators must be proved beyond a reasonable doubt. In both trials, the juries sentenced the defendants to death. In both cases, the Kansas Supreme Court reversed the sentences, citing (among other things) the ambiguity of the instruction. Now the defendants are asking the Supreme Court to allow them to be sentenced again—this time with jury instructions that explicitly state that mitigators need not be proved beyond a reasonable doubt.

For much of the morning, Scalia and Alito merrily bash the Kansas Supreme Court. (Scalia, who wrote last term that “the Brotherhood of the Robe” needed “hearty heaping of humble pie,” looks especially pleased with himself.) The Kansas Supreme Court based its decision on state law as well as the Eighth Amendment. That presents a hitch, since the U.S. Supreme Court must accept a state supreme court’s interpretation of state law. Alito asks if the Kansas justices used state law so that “they do not have to take responsibility for” their ruling. Kansas Attorney General Derek Schmidt, whose role is to clear the way for these defendants’ executions, looks utterly terrified.

“I have no ability to dispute that hot topic,” he stammers, but Scalia is ready to have fun.

“Do you have retention elections in Kansas?” Scalia asks with faux-naivety.

“We do,” Schmidt responds.

Maybe Kansans, Scalia continues, “unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that would reverse these convictions.”

Everybody looks at Breyer, a newly converted death penalty foe, who sighs with not-this-shit-again exasperation.

“I am just speculating, of course,” Scalia finishes with an impish grin. That’s a little hard to believe considering Kansas Republicans have used this exact case to bash the court in the past. But it’s a little hard to believe a lot of stuff Scalia says, and implying that judges should be ousted for an unpopular ruling is hardly his naughtiest quip.

Scalia and the conservative justices then spend a few minutes pretending that Kansas jurors actually were told that mitigators need not be proved beyond a reasonable doubt. That’s rather silly, since the jury instructions at issue were a hopelessly jumbled muddle that juxtaposed “beyond a reasonable doubt” with “mitigating factors” multiple times. Justice Sonia Sotomayor jumps in to play her time-honored role of stating the obvious.

“The Kansas court,” Sotomayor told Schmidt, “has much more experience than we do” with Kansas jury instructions—and it “determined that confusion exists or can exist. Why isn’t that enough for us?”

Good question! Schmidt plays some word games to demonstrate that the instructions were, in fact, the picture of pellucidity. Sotomayor isn’t convinced. Schmidt insists that the Kansas court misapplied Supreme Court precedent and thus should be reversed. Sotomayor retorts.

“What a wonderful system we’ve created,” she says, speaking with a kind of angry intensity that makes the room go a little quieter. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them,” she says. “And when they are wrong on a legal conclusion applying our test, we jump in and reverse them.” In other words, when a judge’s error disadvantages the defendant, the court forgives it. When a judge’s error disadvantages the prosecution, the court corrects it.

“Right?” Sotomayor says, staring down Schmidt. Everyone knows it’s not a question.

No one seems happy about the first hour of arguments—although during a short break, the justices stand up to stretch and chatter amicably, appearing, for 30 seconds, like the good pals they claim to be.

The second hour of arguments deals with a much simpler question. Jonathan and Reginald Carr murdered four people in an astonishingly brutal manner. They were tried and sentenced together. The jury sentenced both men to death. Now they are arguing that they have a constitutional right to be sentenced individually. The court’s Eighth Amendment cases have long mandated “individualized sentencing” in death penalty cases—sentencing that includes “an individualized determination” that death is an “appropriate” punishment. Now the Carr brothers are arguing that this principle gives them a right to be sentenced separately.

That is an extremely appealing argument, especially in the Carr brothers’ case. During sentencing, Jonathan argued that Reginald was a bad influence on him, leading him to a life of crime. But Reginald put forth evidence that Jonathan was unable to control his murderous impulses, implying that Jonathan was morally culpable. By themselves, these claims are solid mitigators. But when told to the same jury, they cancel each other out. Put differently, one brother couldn’t put forth a mitigator without exacerbating the culpability of the other.

Scalia is skeptical that any reasonable jury would give either brother a sentence less than death. To prove it, he pulls a classic Thomas move and describes, in grisly detail, the brothers’ crimes, which involved robbery, kidnapping, sexual torture, and execution-style murder. Everybody sits in stunned silence. But the Carr’s attorney, Frederick Liu, doesn’t flinch.

“In your own opinion last term in Glossip,” Liu responds, “you noted that the egregiousness of an offense is just one factor” in determining whether the death penalty is appropriate. The brothers also put forth heaps of mitigating factors, and the jury deliberated for a full day. “I think the scales of the weighing process were much more evenly balanced than that,” he concludes smoothly.

Liu’s cool-headed response turns out to be the highlight of the second hour. Kansas’ best rejoinder—that “the Constitution values accuracy and fairness—but it also values finality”—sounds rather flimsy when that “finality” is the death of a human being. The court adjourns with no clear answers and a lot of barely muffled irritation among the justices. Scalia, Alito, and the hardcore conservatives seem irked that murderers like Carr keep asking the court to second-guess their sentencing. Breyer, Sotomayor, and his fellow liberals seem increasingly frustrated with these skirmishes around the outer bounds of the death penalty. It’s pretty obvious that the liberals would like to strike down capital punishment itself as unconstitutionally cruel and unusual. But until they get a fifth vote, they’re stuck fighting border wars, tinkering with the machinery of death in a struggle to make a fundamentally unfair system as fair as it can be.