Kansas v. Carr — Capital jurors need not be instructed on burden of proof for mitigating circumstances; severance from co-defendant’s penalty phase not required

The Eighth Amendment does not require that jurors in death penalty cases be instructed that mitigating circumstances need not be proven beyond a reasonable doubt, the U.S. Supreme Court ruled Jan. 20 in Kansas v. Carr. 

The Court also ruled that codefendants’ penalty phases need not be severed. 

Facts      
    
Brothers Reginald and Jonathan Carr were convicted of multiple murders at a joint trial and sentenced to death.

The jury was instructed that “[t]he 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 Kansas Supreme Court vacated the death sentences on grounds that the instruction failed to tell jurors that mitigating circumstances need not be proven beyond a reasonable doubt. 

The Kansas court also vacated the sentences because the joint trial violated each brother’s right to an “individualized capital sentencing determination.”  The court ruled that some of the mitigating evidence that favored one brother disfavored the other.  Jonathan, for example, portrayed Reginald as the corrupting older brother.

Mitigating Circumstance Instruction 

The U.S. Supreme Court, in an 8-1 opinion, reversed.

The Court noted that whether aggravating circumstances exist is a factual question that can be made beyond a reasonable doubt.

“Whether mitigation exists, however, is largely a judgment call (or perhaps a value call),” the Court said.  “And of course the ultimate question of whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy.”

“[W]e doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination,” the Court said.  “If we were to hold that the Constitution requires the mitigating-factor determination to be divided into its factual component and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion.”

The Eighth Amendment “does not require capital sentencing courts ‘to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt,’” the Court held.

The instruction at issue made “clear that both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt,” the Court said. 

Read in context with other instructions, the Court held that the instruction that mitigating circumstances need only be “found to exist” did not misinform jurors that they must find mitigating circumstances beyond a reasonable doubt.  The instructions informed jurors that mitigating circumstances “do not need to be found by all members of the jury” to “be considered by an individual juror in arriving at his or her sentencing decision.”

Severance

The Court also rejected the argument that the brothers’ penalty phase had to be severed.

“Joint proceedings are not only permissible but are often preferable when the joined defendants’ criminal conduct arises out of a single chain of events,” the Court said.  A joint trial may allow a jury to arrive at a more reliable and consistent sentence, the Court noted.

“To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of ‘wanto[n] and freakis[h]’ imposition of death sentences,” the Court said.  “Better that two defendants who have together committed the same crimes be placed side-by-side to have their fates determined by a single jury.”     

Severance is not an Eighth Amendment issue, the Court held.  “[T]he Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like ‘mercy,’” the Court said. 

The issue should be decided as a matter of due process.  “The test,” the Court held, “is whether the evidence ‘so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.’”

Even though the brothers might have had antagonistic theories of mitigation, that does not overcome the “interest in promoting reliability and consistency,” the Court said.

The Court noted that jurors were instructed that they “must give separate consideration to each defendant” and that each was “entitled to have his sentence decided on the evidence and law which is applicable to him.”

Justice Sotomayor dissented on procedural grounds.  She did not believe the Court should have agreed to hear the case, because Kansas could choose to interpret federal law to “overprotect” defendants.