Three people are back on death row.

Photographer: Chip Somodevilla/Getty Images

Justices Only Tinker With Death-Penalty Rules

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Any remaining suspicion that the Supreme Court is soft on the death penalty should be dispelled by Wednesday’s judgment in two cases challenging capital sentences in Kansas. In an 8-1 decision, the justices reinstated death sentences that had been overturned by the Kansas Supreme Court. 

The state court had said that jurors must be told expressly that mitigating circumstances introduced by the defense didn’t need to be proved beyond a reasonable doubt, as findings for the prosecution must be proved. But the U.S. Supreme Court said no such instruction was necessary. Only Justice Sonia Sotomayor dissented, which means that the other three liberals joined the opinion, including Justices Ruth Bader Ginsburg and Stephen Breyer, who’ve said they think the death penalty in general is unconstitutional.

QuickTake Lethal Injections

To understand the ruling, you need to understand the formal way that juries in Kansas (and elsewhere) are asked to decide on a capital sentence. After the conviction of the basic crime, the trial enters a penalty phase. The prosecution introduces what’re called “aggravating circumstances” to show that a defendant should receive a sentence of death. The defense then introduces “mitigating circumstances,” which are supposed to undercut the logic of execution.

In the cases before the Supreme Court, Kansas v. Carr and Kansas v. Gleason, the jurors were told that “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.” According to the Kansas Supreme Court, this language introduced a possible confusion. The jurors would’ve understood that the aggravating circumstances had to be proved beyond a reasonable doubt, which was legally correct. But they may also have thought that the mitigating circumstances had to be proved by the same standard.

The justices at the U.S. Supreme Court found this argument unpersuasive. The opinion, by Justice Antonin Scalia, said that to the contrary, the jury instruction clearly stated that “both the existence of aggravating circumstances and the conclusion that they outweigh mitigating circumstances must be proved beyond a reasonable doubt.” In contrast, he wrote, “mitigating circumstances themselves, on the other hand, must merely be ‘found to exist.’”

For Scalia and the other justices, the difference between something being proved beyond a reasonable doubt and something merely being “found to exist” was intuitively clear. But what’s intuitive to a lawyer might not be intuitive to a jury member.

Scalia had more to say, however. The official holding of the case is that under the Constitution, there’s no need for a special jury instruction specifying that mitigating circumstances don’t need to be proved beyond reasonable doubt. Yet Scalia added what lawyers call a “dicta” (short for “obiter dicta,” an old form now rarely used in the U.S. courts) -- words not necessary to the holding but helpful for clarification.

In the dicta, Scalia said that it didn’t make much sense to think of mitigating factors as subject to a burden of proof at all. Aggravating factors under Kansas law are specific facts, he explained, which “either did or did not exist” and therefore could be found beyond a reasonable doubt. “Whether mitigation exists, however,” Scalia wrote, “is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not.”

Scalia’s dicta introduced the hoary fact/value distinction to the area of death-penalty sentencing. He’s saying that value judgments can’t really be proved beyond a reasonable doubt.

In dissent, Sotomayor singled out the dicta for special criticism. She pointed out that many states do in fact “specify a burden of proof for the existence of mitigating factors … presumably under the belief that it is, in fact, ‘possible’ to do so.”

Sotomayor took her criticism further, arguing that the court shouldn’t have taken the case in the first place. True, the Kansas Supreme Court was applying the U.S. Constitution, not its own state law, so the Supreme Court was technically empowered to review its ruling. But in Sotomayor’s view, the court still should’ve resisted the temptation to weigh in, because by doing so, it reduced the likelihood of individual state experimentation with capital sentencing.

Sotomayor’s argument that the court should allow state supreme courts to function as laboratories of democracy for capital sentencing is a bit opportunistic. No doubt she’d acknowledge that federal intervention is completely justified when state supreme courts fall short of full constitutional protection of capital defendants.

What she’s arguing, therefore, is that the U.S. Supreme Court should allow state courts to protect defendants more than is required by the high court’s jurisprudence, but not less. That’s certainly true with respect to state constitutional law. But it isn’t at all clear that it should be true with respect to the federal Constitution, which needs a uniform interpretation to satisfy the basic principle of equal protection.

The fact that the rest of the court’s liberals didn’t join Sotomayor signals that for them, the death penalty is still business as usual. The Constitution specifies rules for operating what Justice Harry Blackmun called “the machinery of death.” So long as those rules are followed, the machinery will be allowed to continue cranking away.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net