Kansas Supreme Court Rules that Death Penalty Does Not Violate State Constitution’s ​‘Inalienable’ Right to Life

The Kansas Supreme Court has upheld the state’s death penal­ty against two death-row pris­on­ers’ chal­lenges that cap­i­tal pun­ish­ment vio­lates the ​“inalien­able” right to life enshrined in the Kansas state constitution.

In sep­a­rate deci­sions ren­dered in the cas­es of broth­ers Reginald and Jonathan Carr on January 21, 2022, the court held that the right to life guar­an­teed in Section 1 of the Kansas Constitution’s Bill of Rights ​“is not absolute or non­for­feitable” and is for­feit­ed ​“once a defen­dant has been con­vict­ed of cap­i­tal mur­der beyond rea­son­able doubt.” The court found that numer­ous con­sti­tu­tion­al vio­la­tions had occurred in the broth­ers’ joint tri­al in 2002 but affirmed their con­vic­tions and death sen­tences nonethe­less, rul­ing that each of the vio­la­tions con­sti­tut­ed ​“harm­less error” and cumu­la­tive­ly did not affect ​“the jury’s ulti­mate con­clu­sion regard­ing the weight of the aggra­vat­ing and mit­i­gat­ing cir­cum­stances, i.e., the death sentence verdict.”

The court had pre­vi­ous­ly over­turned the Carrs’ death sen­tences on two sep­a­rate grounds in 2014. First, the court ruled that their joint sen­tenc­ing tri­al before a sin­gle jury vio­lat­ed the Eighth Amendment because each broth­er pre­sent­ed mit­i­gat­ing evi­dence to spare his life that exposed the jury to prej­u­di­cial facts about the oth­er broth­er that they were not per­mit­ted to con­sid­er in decid­ing the oth­er brother’s sen­tence. In addi­tion, the court ruled, the tri­al judge had uncon­sti­tu­tion­al­ly failed to instruct the jury that, unlike oth­er facts in the case, the broth­ers were not required to prove beyond a rea­son­able doubt the mit­i­gat­ing fac­tors they pre­sent­ed to the jury. 

In January 2016, the U.S. Supreme Court reversed those rul­ings and returned the cas­es to the Kansas high court to resolve the oth­er penal­ty-phase issues the Carrs had raised in their orig­i­nal appeals. The broth­ers can seek review of the state court’s rul­ing by the U.S. Supreme Court and then have the right to pur­sue state post-con­vic­tion and fed­er­al habeas cor­pus appeals. That part of the appeals process typ­i­cal­ly takes a decade or more to complete. 

The Right to Life Under the Kansas Constitution

The Carr broth­ers both chal­lenged the con­sti­tu­tion­al­i­ty of Kansas’ death-penal­ty statute, argu­ing that it vio­lat­ed the guar­an­tees of ​“life, lib­er­ty, and the pur­suit of hap­pi­ness” con­tained in Section 1 of the Kansas Bill of Rights. They argued that Section 1 cre­at­ed an ​“inalien­able” right to life that would be uncon­sti­tu­tion­al­ly extin­guished by exe­cu­tion, seek­ing to apply the rea­son­ing of a pri­or rul­ing by the court that rec­og­nized a state con­sti­tu­tion­al right to abor­tion under Section 1.

The court unan­i­mous­ly dis­agreed, hold­ing that the framers of the state con­sti­tu­tion ​“did not intend the term ​‘inalien­able’ in sec­tion 1 … to be con­strued as ​‘absolute’ and ​‘non­for­feitable.’” ​“Inalienable,” the court wrote, ​“refers only to one’s abil­i­ty to trans­fer his or her right or inter­est to anoth­er per­son.” The jus­tices con­clud­ed, ​“the nat­ur­al right to life is for­feitable, and the state’s impo­si­tion of the death penal­ty under Kansas’ cap­i­tal sen­tenc­ing scheme does not infringe upon the ​‘inalien­able’ right to life pro­tect­ed under section 1.”

A Trial Riddled with ​‘Harmless Error’

The court found that there were mul­ti­ple con­sti­tu­tion­al and legal vio­la­tions in the Carrs’ penal­ty hear­ing but nev­er­the­less upheld their death sen­tences on the grounds that the errors had no impact on the jury’s sentencing verdict.

“We are con­vinced there is no rea­son­able pos­si­bil­i­ty the iden­ti­fied errors, deemed harm­less in iso­la­tion, cumu­la­tive­ly affect­ed the jury’s ulti­mate con­clu­sion regard­ing the weight of the aggra­vat­ing and mit­i­gat­ing cir­cum­stances, i.e., the death sen­tence ver­dict,” the court wrote. ​“To bor­row … from the United States Supreme Court, giv­en the State’s evi­dence ‘[n]one of that mat­tered. We are sat­is­fied the jury cor­rect­ly under­stood its charge and was not swayed by the aggre­gate impact of these iden­ti­fied (tri­al) defects.’”

Among the errors, the court found that: 

• The tri­al court’s fail­ure to pro­vide sep­a­rate penal­ty phase tri­als of the broth­ers vio­lat­ed Kansas law.
• The tri­al court allowed pros­e­cu­tors to ref­er­ence hearsay state­ments record­ed in police reports while cross-exam­in­ing sev­er­al of Reginald Carr’s penal­ty-phase mitigation witnesses.
• The tri­al judge improp­er­ly denied a con­tin­u­ance that would have allowed a defense men­tal health expert to be present dur­ing the pros­e­cu­tion expert’s tes­ti­mo­ny and to pro­vide tes­ti­mo­ny rebut­ting the state’s expert.
• The tri­al court vio­lat­ed state law by fail­ing to inform the jury how long the Carrs would would be required to serve in prison on the non-cap­i­tal, as well cap­i­tal charges, if the jury returned a life sen­tence on the capital charges
• The tri­al court’s oral instruc­tions mis­in­formed the jury that it could impose a death sen­tence even if aggra­vat­ing cir­cum­stances did not out­weigh mitigating circumstances. 
• The Carrs’ pros­e­cu­tor imper­mis­si­bly expressed per­son­al opin­ions ​“intend­ed to bol­ster the cred­i­bil­i­ty of the State’s expert witness.”
• The pros­e­cu­tor mis­stat­ed how the jury was to weigh aggra­vat­ing and mitigating circumstances.

Chief Justice Marla Luckert dis­sent­ed in both cas­es. ​“In this appeal, we review a tri­al rid­dled by error,” she wrote. ​“The ulti­mate ques­tion before us is whether there is a rea­son­able pos­si­bil­i­ty the cumu­la­tive effect of all errors might have affect­ed even one juror’s deci­sion to impose the death penal­ty. Given the nature and vol­ume of errors, I can­not elim­i­nate the pos­si­bil­i­ty that at least one juror would have decid­ed mit­i­gat­ing fac­tors or mer­cy out­weighed the aggra­vat­ing fac­tors put for­ward as rea­sons to sen­tence [the Carr broth­ers] to death.”

Kansas’ last exe­cu­tion was in 1965, when co-defen­dants George York and James Latham were exe­cut­ed for a mur­der they com­mit­ted while they were teenagers. Kansas juries have imposed only two death sen­tences in the past decade and none since 2016.