Newspaper article The Topeka Capital-Journal

Justices: Death Penalty 'Cruel' ; High Court to Hear Cases for Carrs, Gleason

Newspaper article The Topeka Capital-Journal

Justices: Death Penalty 'Cruel' ; High Court to Hear Cases for Carrs, Gleason

Article excerpt

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. …

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