The NCSL Blog


By Lisa Soronen

The Wichita Massacre was so bad it got name. And a trip to the U.S. Supreme Court.

Supreme Court buildingIn an 8-1 decision in Kansas v. Carr, the U.S. Supreme Court reversed the Kansas Supreme Court’s ruling overturning a jury’s death sentence for the Carr brothers and Sidney Gleason in an unrelated murder.

Reginald and Jonathan Carr were convicted of killing four people in the so-called Wichita Massacre. One intended victim survived because her hair clip deflected the bullet.

The court held that the Eighth Amendment does not require juries deciding capital cases to be informed that mitigating circumstances need not be proved beyond a reasonable doubt and that the joint sentencing of the Carrs didn’t violate the Eighth Amendment’s right to an “individualized sentencing determination.”

Juries deciding whether to impose the death penalty must weigh aggravating circumstances against mitigating circumstances. The state must prove aggravating factors beyond a reasonable doubt. The jury instruction in this case said: “The state has the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstances and that they are not outweighed by any mitigating circumstances found to exist.”

The Carrs brother argued that the “juxtaposition” of aggravating and mitigating circumstances may have caused the jury to believe that mitigating factors also had to be proved beyond a reasonable doubt.

The Supreme Court disagreed.

It pointed out it would be difficult to prove that a mitigating circumstance exists beyond a reasonable doubt because a mitigating circumstance isn’t a factual determination. It is “largely a judgment call (or perhaps a value call).”

Precedent doesn’t require juries to be informed that mitigating circumstances need not be proved beyond a reasonable doubt. And even assuming it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the jury instructions in this case make clear that mitigating circumstances must merely be “found to exist.”

Under the Eighth Amendment, capital defendants have the right to “individualize sentencing determinations.” The Carr brothers were sentenced together. The Kansas Supreme Court found one’s mitigating evidence “put a thumb on death’s scale for the other.” For example, Reginald argued he was prejudiced by Jonathan cross-examining their sister who testified that she thought Reginald admitted to her that he was the shooter. She later backtracked on that testimony.

If evidence “so infected the sentencing proceedings with unfairness” that it means that a jury’s decision to impose the death penalty is a denial of due process then the Eighth Amendment is violated. “The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.”

The court concluded it was “beyond the pale” for the Carr brothers to claim that the other’s mitigating evidence “so infected” the jury’s consideration of the other’s sentence. The jury was instructed in multiple ways to give separate consideration to each defendant. “There is no reason to think the jury could not follow its instruction to consider the defendants separately in this case.”

Justice Sonia Sotomayor dissented. She opined that the court should not have decided this case and that Kansas should be free to “overprotect” it citizens from the death penalty.

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.