Over the course of several days in December 2000, brothers Reginald and Jonathan Carr engaged in a crime spree that came to be popularly known as the Wichita Massacre. In one series of crimes – among the most disturbing I have ever encountered (and friends, that’s saying something) – the Carrs shot and killed four innocent, defenseless people at a soccer field on a freezing, snowy Kansas night. They invaded the home of three male roommates. The girlfriends of two of the men were also present. What happened next is difficult to merely summarize, because to do so would minimize its obscene brutality. To describe it in detail here, on the other hand, would push the boundaries of decency. I therefore leave it to the reader to see for himself, in today’s Supreme Court decision in Kansas v. Carr. Further detail, including overwhelming evidence against the Carrs tying them to the crimes, can be found in the state court opinion, at 311 P.3d 544 (Kan. 2014).
The Carrs were charged with more than 50 counts, including capital murder and rape. They were sentenced to death. The Kansas Supreme Court, however, held that their death sentences were infirm because Kansas law did not require the sentencing jury to be told that mitigating factors did not have to be proven beyond a reasonable doubt. Today, the United States Supreme Court – in an opinion by Justice Scalia that was joined by each and every one of his colleagues except Justice Sotomayor – held that the Kansas Supreme Court was wrong. The Eighth Amendment requires no such instruction to the jury.
As the Court explained, it would be difficult to come up with a precise standard of proof for mitigating factors. These are proven at the “selection” phase of a death penalty proceeding, as opposed to the “eligibility” phase. The eligibility phase consists of a purely factual determination. The selection phase, however, involves a moral judgment that requires each juror to determine whether mitigation exists and how much weight to give it. That may vary from juror to juror, and the Court has consistently avoided constitutional regulation of that kind of judgment. I would also add that, in a case like Carr, it is entirely likely that no amount of mitigation – regardless of the standard by which it might have to be proven – would be adequate to outweigh the aggravating factors.
Quite apart from the precise Eighth Amendment issue at stake in Carr, this case confirms something I have said more often than I care to: we do not retain the option of a death penalty because it is quaint, or because we possess some innate bloodlust, or because we lack understanding of our own imperfections. We retain the death penalty because we have moral sensibilities and understandings of justice which lead us to conclude that, on hopefully rare occasions, the death penalty may be the only punishment that is just and fitting for truly monstrous acts committed by the very real monsters among us.
The crimes committed by the Carr brothers almost certainly fall into that category. It is often said that we should reserve the death penalty for the “worst of the worst.” Surely we have that here. Having a death penalty does not demand its frequent use; rather, it at least gives the People a more fitting option, just in case a Wichita Massacre occurs in their community.
I would also note the remarkable story of Holly, whose life was saved by her own courage and strength, by the goodness of strangers . . . and by a hair clip.