WASHINGTON — The Supreme Court on Wednesday held that judges during death penalty sentencing proceedings are not required to explicitly tell the jury that mitigating circumstances — arguments against imposing the death penalty — do not have to be proven beyond a reasonable doubt.
The question reached the justices in three cases, two of which came out of the grisly Wichita Massacre — a Kansas crime spree committed by brothers Reginald and Jonathan Carr that left five dead.
After a finding of guilt in a capital trial, the sentencing phase requires a jury to consider both aggravating factors — findings that counsel in favor of increased punishment — and mitigating factors — findings that counsel in favor of decreased punishment.
The question before the justices here was whether, under the Eighth Amendment's bar on cruel and unusual punishments, a jury needs to be explicitly instructed that those mitigating factors need not be proven beyond a reasonable doubt — the standard the jury must employ for a finding of guilt and for finding aggravating factors.
The Kansas Supreme Court had tossed out the death sentences handed down in the Carrs' cases and in the case of Sidney Gleason because of the way the jury had been instructed on mitigation in the capital trials.
Justice Antonin Scalia, writing the court's 8-1 decision, began his decision by recounting the facts of Gleason and the brothers' cases.
Making the outcome clear from the start, Scalia began the heart of the opinion by dismissing even the concept of the claim being made by the Carrs and Gleason.
"Approaching the question in the abstract, and without reference to our capital-sentencing case law, we doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called 'selection phase' of a capital-sentencing proceeding)," Scalia wrote. "Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not."
He was not done, though, going into a question not before the court in this case, but nonetheless writing, "[T]he ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy—the quality of which, as we know, is not strained."
As to the specifics of the Kansas cases, Scalia concluded, "The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants' background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence."
The decision reverses the Kansas Supreme Court's decisions tossing out the death sentences for all three men. The decision means, at least on these grounds, that the death sentences handed down for all three men should be reinstated — although other arguments could be raised when the Kansas Supreme Court reconsiders the cases in light of Wednesday's decision.
Justice Sonia Sotomayor, the sole dissenting justice in the case, argued that the justices should not have even heard the case.
“The standard adage teaches that hard cases make bad law,” Sotomayor wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.”
In a second question raised in the Carr brothers' cases, the court found that the brothers had no constitutional right under the Eighth Amendment's protection against cruel and unusual punishment to have the sentencing phase of their trial considered separately.