Fault Lines
12 January 2019

What’s the Matter with Kansas? Candy-Ass Judges, According to Scalia

Oct. 26, 2015 (Mimesis Law) — Earlier this month, the Supreme Court heard arguments about mitigation evidence in a pair of death penalty cases from Kansas. While the cases themselves are not page-turners for their legal issues, the argument was notable for Justice Scalia’s continued venom toward his colleagues who recently have voiced reservations about and even opposition to the death penalty.

Before we get to the rancor at SCOTUS, let’s do a quick run down of the Kansas death penalty duo of Gleason and Carr. Both cases focused on the penalty phase of a death case: where guilt has already been determined and now the jury is deciding the punishment: life or death. Because two cases tackled these issues, they were heard in a two-hour super argument. The first hour examined how jurors weigh a defendant’s life circumstances and history to determine whether to give life without parole instead of a death sentence.

Those life circumstances—termed “mitigating factors”—may persuade the jury to spare the defendant’s life. Often this takes the shape of child abuse, reduced mental capacity, or other trauma that the defendant experienced. The Eighth Amendment gives the defendant an absolute right to present mitigating factors to the jury. At the same time, the prosecution can argue so-called “aggravating” circumstances to establish that the defendant should pay the ultimate price for the crime.

Kansas requires that the prosecution prove aggravating circumstances beyond a reasonable doubt. But mitigating factors do not require that same level of proof. In fact, a defendant need only make a showing that mitigating factors exist; he does not need to legally prove them.

But the jury instructions used in the two Kansas cases omitted this game-changing distinction. Instead, the instructions gave the impression that both aggravating and mitigating factors must be proved beyond a reasonable doubt. Not surprisingly, the juries sentenced the defendants in both cases to death. The Kansas Supreme Court reversed the death sentences, based, in part, on the vagueness of the instruction.

The second hour of the arguments focused on the case of two brothers: Jonathan and Reginald Carr. The Carr brothers’ committed the “Wichita Massacre” in an astoundingly ruthless fashion. Over the course of one week, they murdered five people and a dog, robbed another man, and severely raped and beat a woman. The brothers were tried and sentenced together. On appeal, they argued that should have been sentenced separately.

It might be easy to forget two bad seeds and let them meet their maker. But the argument for separation is undeniable (even if the defendants are reprehensible) given the constitutional rights at issue. At sentencing, Jonathan’s mitigating factors included that he fell prey to Reginald’s bad influence that set him on the path of a life of a crime. On the other hand, Reginald presented evidence that Jonathan’s homicidal compulsions were the root cause of the crime spree. In a joint sentencing, that’s a zero-sum game. The brothers could not truly present mitigating factors without essentially selling out the other. Consequently, the Kansas Supreme Court had more reasons to reverse the death sentences—and piss off Kansas politicians.

Fast forward to the Gleason and Carr arguments in early October. Still smacking from the residual scar tissue of last term’s death cases, Justice Antonin Scalia used his questions to swipe at his more liberal colleagues:  “Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it.”

Scalia also thought that problem was not so much the law in Kansas (or its problematic jury instructions) as it was the judges who reversed the decisions. He even went so far as to suggest that a simple election would avoid cases like this making it to the Supreme Court: “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.”

Scalia seems to view the Kansas Supreme Court justices as candy asses who are soft on crime. He also doesn’t much like anyone who suggests that the death penalty is unconstitutional. Last year, he compared his own colleagues to Marie Antoinette, noting that they have a “let-them-eat cake obliviousness to the needs of others” for failing to recognize the fear of crime experienced by many and the related deterrent effect of the death penalty.

As a Kansas native, I can say definitively that I’m sometimes proud of my roots, other times I shake my head. The Kansas Supreme Court had a difficult decision to make, as any court does when it tackles death cases. But we expect and hope that judges make decisions objectively, based on the law not their individual election quotient. Judges have to make decisions objectively, including those that are unpopular.

Even if the Supreme Court affirms the Kansas decisions, these cases won’t result in murders being released on technicalities. In fact, they won’t be released at all. They will spend the rest of the natural lives in prison. Or a jury might give them death on retrial.

Bad people do bad things, but the criminal justice system also does bad things that can affect innocent people. So Scalia can sit on his high horse as an unelected potentate, and pontificate all he wants about what the people of Kansas should do with judges who don’t toe the electorate’s line. He doesn’t have to face the voters who question his decisions. Fortunately, we won’t be bringing back the guillotine anytime soon. Even Kansas’s own ultra-conservative Koch brothers support criminal justice reform.

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  • Scott Jacobs
    26 October 2015 at 1:21 pm - Reply

    “The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”