Supreme Court to Decide Two Death Penalty Cases Next Term

To date, the Supreme Court’s docket for next term has less than ten cases.  Two of them involve the death penalty.  Combined, they raise at least three issues.   

It is difficult to know what issues the Court will decide in Hurst v. Florida.  In his certiorari petition Timothy Lee Hurst asked the Court to decide at least six issues.  The Court combined and shortened Hurst’s questions presented to address whether Florida’s death penalty sentencing scheme violates the Sixth (right to a jury trial) and Eighth (no cruel and unusual punishment) Amendments.    

Hurst was convicted of murdering the assistant manager at the Popeye’s restaurant where he worked.  Seven out of 12 jurors recommend that Hurst be put to death based on unspecified aggravating factors.

It seems most likely that the Court will decided whether Florida’s death penalty scheme violates the U.S. Constitution to the extent it does not require jurors to find specific facts as to aggravating factors that justify a death sentence.  In Ring v. Arizona the Court held the Sixth Amendment right to a jury trial includes for capital defendants a jury determination of any facts which increase maximum punishment.  While Florida allows jurors to find aggravating factors it does not require them to articulate which ones they find.  So in this case it is possible that the seven jurors recommending death relied on different aggravating factors.  Florida doesn’t require juries to make specific findings of aggravators based on a per-Ring Supreme Court decision involving Florida, which the Court did not expressly overrule in Ring.

It is also possible that the Court will determine whether jury verdicts that are not unanimous as to the finding of an aggravating circumstance can be imposed per the Eighth Amendment.  The dissent notes that every other state and the federal system require juror unanimity as to the finding of an aggravating circumstance.        

Finally, Hurst alleges that the jury—rather than a judge—should have been able to decide whether he is intellectually disabled.  Per Atkins v. Virginia, executing people who are intellectual disabled violates the Eighth Amendment.  States have taken varying approaches to the question of who determines intellectual disability in death penalty cases.    

The consolidated cases of Kansas v. Gleason, Kansas v. Reginald Carr, and Kansas v. Jonathan Carr also raise multiple issues.  Sidney Gleason was convicted of capital murder for the killing of a fellow participant in a robbery and her boyfriend.  Brothers Reginald and Jonathan Carr were each convicted of four counts of capital murder, among numerous other convictions, related to three incidents in December 2000, including the robbing and killing of four roommates.  

All three cases raise the issue of whether juries must be affirmatively instructed that capital defendants do not have to prove factors mitigating against the death penalty beyond a reasonable doubt.   The Kansas Supreme Court held that juries must be so instructed.  Kansas law places “no evidentiary burden regarding the existence of mitigating circumstances on the defendant beyond the burden of production,” but Kansas jury instructions are silent about the burden of proof for mitigating circumstances.  So “Gleason's jury was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt.”  The Carr courts followed Gleason.   

The Carr brothers’ cases raise the issue of whether the Eighth Amendment right to “individualized sentencing” was violated and if so whether the error was harmless. They were tried and sentenced together even though Reginald claimed he was not involved in the robbery and murder of the roommates and Johnathan claimed that Reginald was the leader and he was the follower. 

The Kansas Supreme Court held that their death penalty sentencing should have been severed because the brothers’ mitigating testimony was antagonistic toward each other.  Specifically, during Reginald’s mitigation case, on cross-examination by Johnathan’s lawyer, their sister testified that Reginald admitted to her, while she was visiting him in jail, that he shot the four roommates.   Non-severing wasn’t harmless because “[t]he evidence that was admitted, the especially damning subset of it [from their sister] that may not have been admitted in a severed proceeding, and the hopelessly tangled interrelationship of the mitigation cases presented by the defendants persuades us that the jury could not have discharged its duty to consider only the evidence limited to one defendant as it arrived at their death sentences.”

By the end of June 2015 the Court will decide whether Oklahoma’s use of a different drug for lethal injection instead of Court-approved drug violates the Eighth Amendment in Glossip v. Gross.