Note: This is the second story in a series of three articles.
On the final day of a U.S. Supreme Court term that will long be remembered for legalizing same-sex marriage, two justices boldly and bluntly challenged the constitutionality of the death penalty in America.
Dissenting from the majority in Glossip v. Gross, a case centered on Oklahoma’s use of the drug midazolam in executions, Justice Stephen Breyer wrote June 29 that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’ ” Justice Ruth Bader Ginsburg concurred with Breyer’s dissent.
With the Glossip case fresh in the minds of justices, the high court will hear oral arguments Wednesday in two of the five Eighth Amendment cases before the court this term — Kansas v. Carr and Kansas v. Gleason — kicking off what court observers say may be the most important Supreme Court term for the death penalty in four decades.
“It’s unusual for them to have five cases in the first three weeks on any one topic,” said Rory Little, a law professor at the University of California-Hastings and former law clerk for five U.S. Supreme Court justices. “You’re going to see fireworks between the justices.”
The Kansas Supreme Court vacated the death sentences of Jonathan Carr, Reginald Carr and Sidney Gleason last year amid concerns that juries weren’t properly instructed on the burden of proof for mitigating evidence. The state court also questioned whether the Carr brothers, accomplices in a series of grisly murders around Wichita in 2000, should have been sentenced in tandem.
Though the issues raised by the Kansas Supreme Court hone in on relatively minute procedural details, they will be heard before the U.S. Supreme Court at a time when justices are questioning the fundamental bases behind the death penalty.
“It seems like everything is on the table,” said Elizabeth Cateforis, assistant professor at the University of Kansas School of Law and supervising attorney at the Project for Innocence & Post-Conviction Remedies. “There are all kinds of issues piquing the justices’ minds right now.”
The high court ruled in 1973 that the arbitrary manner of executions was a violation of the Eighth Amendment. Three years later, the court reinstated the death penalty and redefined the guidelines under which defendants can be sentenced to die. In the 40 years since, the court has debated procedural matters in capital punishment cases with mixed results.
“I think, over time, you can see a growing skepticism about the death penalty,” said Stephen Bright, a Yale Law School lecturer who has defended death row inmates before the U.S. Supreme Court.
That skepticism reaches far beyond the polished halls of the U.S. Supreme Court building. In August, the Kansas Federation of College Republicans called for an end to the death penalty, noting declining support for the practice among young American adults. The Kansas Republican Liberty Caucus also opposes the death penalty and the Kansas Republican Party platform currently is neutral on the matter.
“The exonerations from death row, as well as those not on death row, should give anyone pause and consideration to opposing the death penalty in this country,” Cateforis said.
On June 22, 1965, spree killers George York and James Latham were hanged at Lansing Correctional Facility for killing seven people in five states after deserting from the U.S. Army. Their executions were the last to occur in Kansas. There are currently nine inmates in Kansas who have been sentenced to die, including Gleason and the Carr brothers, according to the Kansas Department of Corrections’ website.
The guilt of Gleason and the Carr brothers — much like the guilt of York and Latham — is not in doubt. But the constitutionality of the death penalty is. In their dissent, Justices Breyer and Ginsburg wrote that efforts to apply capital punishment fairly over the past 40 years have failed and urged the court “to reopen the question” of its constitutionality.
“Four decades ago, the Court believed it possible to interpret the Eighth Amendment in ways that would significantly limit the arbitrary application of the death sentence,” Breyer wrote. “But that no longer seems likely.”