WASHINGTON -- State-sponsored death is still on the justices' minds.
The U.S. Supreme Court put on a rare two-hour show over the death penalty on Wednesday. Before the court were three murderers who'd had their capital sentences reversed and constitutional questions that had less to do with the ultimate punishment than how a state gets there. In all likelihood, the justices will barely chip away at the so-called machinery of death.
Justice Antonin Scalia rose to the defense of the death penalty with an uninvited soliloquy about the grisly murders behind the main cases.
"Let me put the crime to you. You tell me which of these descriptions of the crime are incorrect," Scalia said before describing at vivid length the Wichita Massacre, a killing spree that rocked Kansas in 2000 and is now before the justices because the state's own supreme court threw out the death sentences of the perpetrators.
The ongoing chaos in the nation's system of capital punishment -- the string of executions, last-minute appeals to the Supreme Court and other dysfunctions of recent weeks -- might have offered its own counter-argument. Only last week, the court refused to spare the life of Richard Glossip, who is still alive only thanks to Oklahoma's own incompetence.
Wednesday's hearing into the linked cases of brothers Jonathan and Reginald Carr and a third defendant in a separate double murder -- collectively known as Kansas v. Carr -- tackled specific trial procedures leading to a death sentence. Six lawyers representing the three murderers, the state and the U.S. government addressed how a state may reach the decision to execute someone and when a state's process violates Eighth Amendment protections.
The first hour of argument focused on how jurors weigh circumstances in a defendant's life that may justify sparing that individual's life. All three defendants here argued -- and the Kansas Supreme Court had agreed -- that the state failed to instruct jurors that such mitigating circumstances did not need to be proved "beyond a reasonable doubt."
During the second hour, the issue was whether the Constitution requires that two co-murderers be sentenced separately when the prosecution seeks the death penalty. The Carr brothers, perpetrators of the Wichita Massacre, had been sentenced jointly. They contended that the joint hearing violated the brothers' right to "individualized sentencing." With separate hearings, they argued, there would have been a greater possibility that one of them might have been sentenced more mercifully.
Whether either quirk in the defendants' sentencing amounted to a constitutional violation is not easy to say, and the justices spent a good deal of time wrestling with the issues. And pushing back against the lawyers' claims. And trying to see the bigger picture. And attempting to get to the bottom of what Kansas really wanted.
Kansas appealed the overturning of all three men's capital sentences, so the state wants them executed. But it isn't clear that a win for Kansas will lead to executions. Even if the U.S. Supreme Court agrees that the state's procedures did not violate the Constitution, the cases will only go back to the Kansas Supreme Court.
The state court may well take note of the fact that Kansas now offers the very type of sentencing jury instruction that these defendants didn't get. This might prompt the state court to give them new sentencing hearings -- and they may very well get spared again.
As for the matter of a joint sentencing hearing for the Carrs, the justices didn't seem fully convinced that separate hearings would solve the brothers' constitutional conundrum. After all, the Carrs had been together through it all -- growing up, during the crime spree, at trial. The justices seemed to agree that the overlap in their lives and cases favored sentencing them jointly.
Pragmatically, Justice Stephen Breyer wondered aloud whether ordering separate sentencing hearings in this case would be like "throwing a huge monkey wrench" in other criminal prosecutions -- such as cases involving gangs, where joint proceedings are very common and save a great deal of time and resources.
A decision in the three cases is expected sometime before the U.S. Supreme Court adjourns in June.
Three more cases involving the constitutionality of the capital punishment systems in Florida, Georgia and Pennsylvania are on the court's docket and will be heard in coming months. None of them directly challenges the death penalty either; they all address trial procedures in reaching a death verdict.
Still, Justice Breyer's invitation to mount a straight-on constitutional attack against the death penalty remains on the table. It's only a matter of time before someone takes him up on it.