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September 29, 2015

#BESTEA: "Will the Supreme Court 'peck away at' capital punishment?"

The title of this post is has my silly new SCOTUS hashtag along with the headline of this new ABA Journal article previewing the death penalty cases that the Supreme Court will hear in the next few weeks as it starts #BESTEA.  (This silly hashtag is explained in this prior post.)  Here is an excerpt:

On Oct. 7, the court will hear arguments in cases from Kansas that raise procedural questions. The key question is whether the Eighth Amendment requires that a jury considering a death sentence be given explicit instructions pointing out that mitigating circumstances do not have to be proven beyond a reasonable doubt.  The Kansas Supreme Court concluded that such an instruction was required, and the state asked the U.S. Supreme Court to review Kansas v. Gleason and Kansas v. Carr.

On Oct. 13, the justices are scheduled to hear arguments in Hurst v. Florida, another case that addresses death penalty sentencing procedures. In Florida, a defendant may not be sentenced to death without a factual finding of at least one aggravating factor.  The jury weighs aggravating and mitigating factors, and it makes a recommendation to the trial judge about whether death should be imposed.  The jury’s recommendation need not be unanimous.  But Florida law also requires the judge to independently weigh aggravating and mitigating factors.  The judge must give the jury’s recommendation “great weight” under state precedents, but he or she can override the recommendation in extraordinary circumstances.

September 29, 2015 at 10:58 AM | Permalink


Again, nitpicking procedural claims. Each is about false or nebulous concepts. The number of nits appears to approach infinity.

I tried to quantify the burden of proof, a lawyer here shot down the idea. Was it Bruce?

I said, preponderance was 51% certainty. Clear and convincing was 66% certainty. Beyond a reasonable doubt was 80% certainty. This number was validated by the one exoneration for every 5 death sentences a year. (Such an error rate of 20% is shocking to the conscience and appalling, especially after a quarter of the exonerated had confessed to a murder they had not committed. But then we are dealing with lawyers, mentally crippled people, so 80% accuracy is all one can expect. At least it is not a 90% error rate, as in the case of 10% of felonies getting prosecuted.)

So, I invite my good internet lawyer friends to write the proper jury instruction on burden of proof of mitigating factors to the death penalty jury of Kansas v Gleason, and of Kansas v Carr. Try to do it in one clear sentence.

Naturally, the lawyer is protecting sadistic spree murderers of strangers.

Posted by: Supremacy Claus | Sep 29, 2015 12:51:23 PM

My hunch is that the two cases will combine for the following rules: 1) As required by Ring, any "narrowing" statutory aggravating circumstances are sufficiently element-like to require that a jury find them beyond a reasonable doubt; and 2) Beyond statutory aggravating circumstances, factors considered by a jury in "weighing" the death penalty do not need to be found beyond a reasonable doubt (and the State can even place the burden of proving mitigation on the defendant).

Hurst also raises interesting questions about the jury role in the process, I am less sure about what the court will say about that. At the very least, the jury can't be told that it is merely advisory, but am not sure how "binding" the jury role has to be. My understanding of the cert question is that it does not include any double jeopardy argument that the jury's verdict recommending life equals an acquittal on death which might be the better argument against the practices of states like Florida and Alabama.

Bottom line is that Kansas wins (because their Supreme Court went further than federal law requires) and Florida loses (because their statute does not comply with Ring).

Posted by: tmm | Oct 1, 2015 9:52:51 AM

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