(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

KANSAS v. CARR 

CERTIORARI TO THE SUPREME COURT OF KANSAS 

No. 14–449. Argued October 7, 2015—Decided January 20, 2016* 

A Kansas jury sentenced respondent Sidney Gleason to death for killing

a co-conspirator and her boyfriend to cover up the robbery of an elderly man.

A Kansas jury sentenced respondents Reginald and Jonathan Carr, 

brothers, to death after a joint sentencing proceeding. Respondents

were convicted of various charges stemming from a notorious crime

spree that culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. 

The Kansas Supreme Court vacated the death sentences in each 

case, holding that the sentencing instructions violated the Eighth 

Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.” It also held that the Carrs’ Eighth Amendment right

“to an individualized capital sentencing determination” was violated

by the trial court’s failure to sever their sentencing proceedings. 

Held: 

1. The Eighth Amendment does not require capital-sentencing 

courts to instruct a jury that mitigating circumstances need not be 

proved beyond a reasonable doubt. Pp. 8–13.

(a) Because the Kansas Supreme Court left no doubt that its ruling was based on the Federal Constitution, Gleason’s initial argument—that this Court lacks jurisdiction to hear his case because the 

state court’s decision rested on adequate and independent state-law

grounds—is rejected. See Kansas v. Marsh, 548 U. S. 163, 169. 

Pp. 8–9. 

—————— 

*Together with No. 14–450, Kansas v. Carr, and No. 14–452, Kansas 

v. Gleason, also on certiorari to the same court. 
 

 

 

2 KANSAS v. CARR 

Syllabus 

(b) This Court’s capital-sentencing case law does not support requiring a court to instruct a jury that mitigating circumstances need 

not be proved beyond a reasonable doubt. See, e.g., Buchanan v. Angelone, 522 U. S. 269, 275. Nor was such an instruction constitutionally necessary in these particular cases to avoid confusion. Ambiguity in capital-sentencing instructions gives rise to constitutional error

only if “there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence,” Boyde v. California, 494 U. S. 

370, 380, a bar not cleared here. Even assuming that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, the record belies the defendants’ contention that the instructions caused jurors to apply such a standard 

of proof here. The instructions make clear that both the existence of 

aggravating circumstances and the conclusion that they outweigh 

mitigating circumstances must be proved beyond a reasonable doubt

but that mitigating circumstances must merely be “found to exist,”

which does not suggest proof beyond a reasonable doubt. No juror

would have reasonably speculated that “beyond a reasonable doubt”

was the correct burden for mitigating circumstances. Pp. 9–13.

2. The Constitution did not require severance of the Carrs’ joint 

sentencing proceedings. The Eighth Amendment is inapposite when

a defendant’s claim is, at bottom, that evidence was improperly admitted at a capital-sentencing proceeding. The question is whether

the allegedly improper evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death

penalty a denial of due process.” Romano v. Oklahoma, 512 U. S. 1, 

12. In light of all the evidence presented at the guilt and penalty

phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one Carr brother 

could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale. The 

Court presumes that the jury followed its instructions to “give separate consideration to each defendant.” Bruton v. United States, 391 

U. S. 123, distinguished. Joint proceedings are permissible and often

preferable when the joined defendants’ criminal conduct arises out of 

a single chain of events. Buchanan v. Kentucky, 483 U. S. 402, 418. 

Limiting instructions, like those given in the Carrs’ proceeding, “often will suffice to cure any risk of prejudice,” Zafiro v. United States, 

506 U. S. 534, 539, that might arise from codefendants’ “antagonistic”

mitigation theories, id., at 538. It is improper to vacate a death sentence based on pure “speculation” of fundamental unfairness, “rather

than reasoned judgment.” Romano, supra, at 13–14. Only the most

extravagant speculation would lead to the conclusion that any sup-
Cite as: 577 U. S. ____ (2016) 3 

Syllabus 

posedly prejudicial evidence rendered the Carr brothers’ joint sentencing proceeding fundamentally unfair when their acts of almost 

inconceivable cruelty and depravity were described in excruciating 

detail by the sole survivor, who, for two days, relived the Wichita

Massacre with the jury. Pp. 13–17. 

No. 14–449, 300 Kan. 340, 329 P. 3d 1195; No. 14–450, 300 Kan. 1, 331 

P. 3d 544; and No. 14–452, 299 Kan. 1127, 329 P. 3d 1102, reversed 

and remanded. 

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, 

JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

 

Cite as: 577 U. S. ____ (2016) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 14–449, 14–450, and 14–452 

KANSAS, PETITIONER 

14–449 v. 

JONATHAN D. CARR 

KANSAS, PETITIONER 

14–450 v. 

REGINALD DEXTER CARR, JR. 

KANSAS, PETITIONER 

14–452 v. 

SIDNEY J. GLEASON 

ON WRITS OF CERTIORARI TO THE SUPREME COURT OF 

KANSAS
 

[January 20, 2016]

 JUSTICE SCALIA delivered the opinion of the Court. 

The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and 

her boyfriend to cover up the robbery of an elderly man.

The Carrs’ notorious Wichita crime spree culminated in

the brutal rape, robbery, kidnaping, and execution-style 

shooting of five young men and women. We first consider 

whether the Constitution required the sentencing courts

to instruct the juries that mitigating circumstances “need

not be proved beyond a reasonable doubt.” And second, 
 

2 KANSAS v. CARR 

Opinion of the Court 

whether the Constitution required severance of the Carrs’ 

joint sentencing proceedings. 

I 

A 

Less than one month after Sidney Gleason was paroled 

from his sentence for attempted voluntary manslaughter,

he joined a conspiracy to rob an elderly man at knifepoint.1 Gleason and a companion “cut up” the elderly man

to get $10 to $35 and a box of cigarettes. 299 Kan. 1127, 

1136, 329 P. 3d 1102, 1115 (2014). Fearing that their 

female co-conspirators would snitch, Gleason and his

cousin, Damien Thompson, set out to kill co-conspirator 

Mikiala Martinez. Gleason shot and killed Martinez’s 

boyfriend, and then Gleason and Thompson drove Martinez to a rural location, where Thompson strangled her

for five minutes and then shot her in the chest, Gleason 

standing by and providing the gun for the final shot. 

The State ultimately charged Gleason with capital

murder for killing Martinez and her boyfriend, first-degree 

premeditated murder of the boyfriend, aggravating kidnaping of Martinez, attempted first-degree murder and

aggravated robbery of the elderly man, and criminal possession of a firearm. He was convicted on all counts except

the attempted first-degree murder charge. Id., at 1134– 

1135, 1146, 329 P. 3d, at 1114, 1120. The jury also found

that the State proved beyond a reasonable doubt the

existence of four aggravating circumstances and unanimously agreed to a sentence of death. Id., at 1146–1147, 

329 P. 3d, at 1120–1121. 

B 

In December 2000, brothers Reginald and Jonathan 

—————— 

1The facts for this portion of the opinion come from the Kansas Supreme Court, 299 Kan. 1127, 1134–1147, 329 P. 3d 1102, 1113–1121

(2014), and the parties’ briefs. 
 

Cite as: 577 U. S. ____ (2016) 3 

Opinion of the Court 

Carr set out on a crime spree culminating in the Wichita

Massacre.2 On the night of December 7, Reginald Carr

and an unknown man carjacked Andrew Schreiber, held a 

gun to his head, and forced him to make cash withdrawals 

at various ATMs. 

On the night of December 11, the brothers followed 

Linda Ann Walenta, a cellist for the Wichita symphony, 

home from orchestra practice. One of them approached

her vehicle and said he needed help. When she rolled 

down her window, he pointed a gun at her head. When 

she shifted into reverse to escape, he shot her three times,

ran back to his brother’s car, and fled the scene. One of 

the gunshots severed Walenta’s spine, and she died one

month later as a result of her injuries.

On the night of December 14, the brothers burst into a 

triplex at 12727 Birchwood, where roommates Jason, 

Brad, and Aaron lived. Jason’s girlfriend, Holly, and 

Heather, a friend of Aaron’s, were also in the house. 

Armed with handguns and a golf club, the brothers forced

all five into Jason’s bedroom. They demanded that they

strip naked and later ordered them into the bedroom 

closet. They took Holly and Heather from the bedroom, 

demanded that they perform oral sex and digitally penetrate each other as the Carrs looked on and barked orders. 

They forced each of the men to have sex with Holly and 

then with Heather. They yelled that the men would be

shot if they could not have sex with the women, so Holly—

fearing for Jason’s life—performed oral sex on him in the

closet before he was ordered out by the brothers. 

Jonathan then snatched Holly from the closet. He 

ordered that she digitally penetrate herself. He set his 

—————— 

2The facts for this portion of the opinion come from the Kansas Supreme Court, 300 Kan. 1, 18–38, 331 P. 3d 544, 575–586 (2014), and

witness testimony. See 21–A Tr. 59–75 (Oct. 7, 2002), 22–B Tr. 39–124

(Oct. 8, 2002), 23–A Tr. 4–118 (Oct. 9, 2002), 23–B Tr. 5–133 (Oct. 9,

2002), and 24–A Tr. 4–93 (Oct. 10, 2002). 
 

 

4 KANSAS v. CARR 

Opinion of the Court 

gun between her knees on the floor. And he raped her.

Then he raped Heather.

Reginald took Brad, Jason, Holly, and Aaron one-by-one 

to various ATMs to withdraw cash. When the victims 

returned to the house, their torture continued. Holly urinated in the closet because of fright. Jonathan found an 

engagement ring hidden in the bedroom that Jason was 

keeping as a surprise for Holly. Pointing his gun at Jason,

he had Jason identify the ring while Holly was sitting

nearby in the closet. Then Reginald took Holly from the

closet, said he was not going to shoot her yet, and raped 

her on the dining-room floor strewn with boxes of Christmas decorations. He forced her to turn around, ejaculated

into her mouth, and forced her to swallow. In a nearby 

bathroom, Jonathan again raped Heather and then again 

raped Holly.

At 2 a.m.—three hours after the mayhem began—the

brothers decided it was time to leave the house. They

attempted to put all five victims in the trunk of Aaron’s 

Honda Civic. Finding that they would not all fit, they

jammed the three young men into the trunk. They directed Heather to the front of the car and Holly to Jason’s 

pickup truck, driven by Reginald. Once the vehicles arrived at a snow-covered field, they instructed Jason and 

Brad, still naked, and Aaron to kneel in the snow. Holly

cried, “Oh, my God, they’re going to shoot us.” Holly and

Heather were then ordered to kneel in the snow. Holly 

went to Jason’s side; Heather, to Aaron. 

Holly heard the first shot, heard Aaron plead with the

brothers not to shoot, heard the second shot, heard the 

screams, heard the third shot, and the fourth. She felt the 

blow of the fifth shot to her head, but remained kneeling.

They kicked her so she would fall face-first into the snow 

and ran her over in the pickup truck. But she survived, 

because a hair clip she had fastened to her hair that night

deflected the bullet. She went to Jason, took off her 
Cite as: 577 U. S. ____ (2016) 5 

Opinion of the Court 

sweater, the only scrap of clothing the brothers had let her

wear, and tied it around his head to stop the bleeding from

his eye. She rushed to Brad, then Aaron, and then 

Heather. 

Spotting a house with white Christmas lights in the 

distance, Holly started running toward it for help—naked,

skull shattered, and without shoes, through the snow and

over barbed-wire fences. Each time a car passed on the 

nearby road, she feared it was the brothers returning and

camouflaged herself by lying down in the snow. She made 

it to the house, rang the doorbell, knocked. A man opened

the door, and she relayed as quickly as she could the

events of the night to him, and minutes later to a 911

dispatcher, fearing that she would not live.

Holly lived, and retold this play-by-play of the night’s

events to the jury. Investigators also testified that the 

brothers returned to the Birchwood house after leaving

the five friends for dead, where they ransacked the place

for valuables and (for good measure) beat Holly’s dog,

Nikki, to death with a golf club.

The State charged each of the brothers with more than

50 counts, including murder, rape, sodomy, kidnaping,

burglary, and robbery, and the jury returned separate

guilty verdicts. It convicted Reginald of one count of kidnaping, aggravated robbery, aggravated battery, and 

criminal damage to property for the Schreiber carjacking,

and one count of first-degree felony murder for the Walenta

shooting. Jonathan was acquitted of all counts related 

to the Schreiber carjacking but convicted of first-degree

felony murder for the Walenta shooting. For the Birchwood murders, the jury convicted each brother of 4 counts

of capital murder, 1 count of attempted first-degree murder, 5 counts of aggravated kidnaping, 9 counts of aggravated robbery, 20 counts of rape or attempted rape, 3

counts of aggravated criminal sodomy, 1 count each of 

aggravated burglary and burglary, 1 count of theft, and 1 
 

6 KANSAS v. CARR 

Opinion of the Court 

count of cruelty to animals. The jury also convicted Reginald of three counts of unlawful possession of a firearm. 

300 Kan. 1, 15–16, 331 P. 3d 544, 573–574 (2014). 

The State sought the death penalty for each of the four 

Birchwood murders, and the brothers were sentenced 

together. The State relied on the guilt-phase evidence, 

including Holly’s two days of testimony, as evidence of four 

aggravating circumstances: that the defendants knowingly

or purposely killed or created a great risk of death to more 

than one person; that they committed the crimes for the

purpose of receiving money or items of monetary value; 

that they committed the crimes to prevent arrest or prosecution; and that they committed the crimes in an especially heinous, atrocious, or cruel manner. Id., at 258–259, 

331 P. 3d, at 708. After hearing each brother’s case for 

mitigation, the jury issued separate verdicts of death for 

Reginald and Jonathan. It found unanimously that the

State proved the existence of the four aggravating circumstances beyond a reasonable doubt and that those aggravating circumstances outweighed the mitigating circumstances, justifying four separate verdicts of death for each

brother for the murders of Jason, Brad, Aaron, and 

Heather. App. in No. 14–449 etc., pp. 461–492. 

C 

The Kansas Supreme Court vacated the death penalties

in both cases. It held that the instructions used in both 

Gleason’s and the Carrs’ sentencing violated the Eighth

Amendment because they “failed to affirmatively inform

the jury that mitigating circumstances need only be 

proved to the satisfaction of the individual juror in that

juror’s sentencing decision and not beyond a reasonable 

doubt.” 299 Kan., at 1196, 329 P. 3d, at 1147 (Gleason); 

300 Kan., at 303, 331 P. 3d, at 733 (Reginald Carr); 300

Kan. 340, 369–370, 329 P. 3d 1195, 1213 (2014) (Jonathan

Carr). Without that instruction, according to the court, 
 

Cite as: 577 U. S. ____ (2016) 7 

Opinion of the Court 

the jury “was left to speculate as to the correct burden of

proof for mitigating circumstances, and reasonable jurors

might have believed they could not consider mitigating

circumstances not proven beyond a reasonable doubt.” 

299 Kan., at 1197, 329 P. 3d, at 1148. This, the court 

concluded, might have caused jurors to exclude relevant

mitigating evidence from their consideration. Ibid. 

The Kansas Supreme Court also held that the Carrs’ 

death sentences had to be vacated because of the trial 

court’s failure to sever their sentencing proceedings, 

thereby violating the brothers’ Eighth Amendment right

“to an individualized capital sentencing determination.”

300 Kan., at 275, 331 P. 3d, at 717; 300 Kan., at 368, 329 

P. 3d, at 1212. According to the court, the joint trial “inhibited the jury’s individualized consideration of [Jonathan] because of family characteristics tending to demonstrate future dangerousness that he shared with his

brother”; and his brother’s visible handcuffs prejudiced the 

jury’s consideration of his sentence. 300 Kan., at 275, 331 

P. 3d, at 717. As for Reginald, he was prejudiced, according to the Kansas Supreme Court, by Jonathan’s portrayal

of him as the corrupting older brother. Id., at 276, 331 

P. 3d, at 717. Moreover, Reginald was prejudiced by his 

brother’s cross-examination of their sister, who testified 

that she thought Reginald had admitted to her that he

was the shooter. Id., at 279, 331 P. 3d, at 719. (She later

backtracked and testified, “‘I don’t remember who was, 

you know, shot by who[m].’” Ibid.) The Kansas Supreme

Court opined that the presumption that the jury followed 

its instructions to consider each defendant separately was

“defeated by logic.” Id., at 280, 331 P. 3d, at 719. “[T]he

defendants’ joint upbringing in the maelstrom that was

their family and their influence on and interactions with

one another . . . simply was not amenable to orderly separation and analysis.” Ibid., 331 P. 3d, at 719–720. The 

Kansas Supreme Court found itself unable to “say that the 
 

8 KANSAS v. CARR 

Opinion of the Court 

death verdict was unattributable, at least in part, to this 

error.” Id., at 282, 331 P. 3d, at 720. We granted certiorari. 575 U. S. ___ (2015). 

II 

We first turn to the Kansas Supreme Court’s contention 

that the Eighth Amendment required these capitalsentencing courts to instruct the jury that mitigating

circumstances need not be proved beyond a reasonable 

doubt. 

A 

Before considering the merits of that contention, we 

consider Gleason’s challenge to our jurisdiction. According

to Gleason, the Kansas Supreme Court’s decision rests on 

adequate and independent state-law grounds. This argument is a familiar one. We rejected it in Kansas v. Marsh, 

548 U. S. 163, 169 (2006). Like the defendant in that case, 

Gleason urges that the decision below rests only on a rule 

of Kansas law announced in State v. Kleypas, 272 Kan. 

894, 40 P. 3d 139 (2001) (per curiam)—a rule later reiterated in State v. Scott, 286 Kan. 54, 183 P. 3d 801 (2008) 

( per curiam). As we stated in Marsh, “Kleypas, itself, 

rested on federal law.” 548 U. S., at 169. So too does the 

relevant passage of Scott, which rested on Kleypas’s discussion of the constitutional rule that jurors need not

agree on mitigating circumstances. See Scott, supra, at 

106–107, 183 P. 3d, at 837–838. The Kansas Supreme 

Court’s opinion in this case acknowledged as much, saying

that “statements from Kleypas implicate the broader

Eighth Amendment principle prohibiting barriers that

preclude a sentencer’s consideration of all relevant mitigating evidence.” 299 Kan., at 1195, 329 P. 3d, at 1147. 

The Kansas Supreme Court’s opinion leaves no room for

doubt that it was relying on the Federal Constitution. It 

stated that the instruction it required “protects a capital 
 

 

Cite as: 577 U. S. ____ (2016) 9 

Opinion of the Court 

defendant’s Eighth Amendment right to individualized 

sentencing,” that the absence of the instruction “implicat[ed] Gleason’s right to individualized sentencing 

under the Eighth Amendment,” and that vacatur of 

Gleason’s death sentence was the “[c]onsequen[ce]” of 

Eighth Amendment error. Id., at 1196–1197, 329 P. 3d, at 

1147–1148 (emphasis added). 

For this reason, the criticism leveled by the dissent is

misdirected. It generally would have been “none of our 

business” had the Kansas Supreme Court vacated 

Gleason’s and the Carrs’ death sentences on state-law 

grounds. Marsh, 548 U. S., at 184 (SCALIA, J., concurring).

But it decidedly did not. And when the Kansas Supreme

Court time and again invalidates death sentences because

it says the Federal Constitution requires it, “review by this 

Court, far from undermining state autonomy, is the only 

possible way to vindicate it.” Ibid. “When we correct a 

state court’s federal errors, we return power to the State, 

and to its people.” Ibid. The state courts may experiment

all they want with their own constitutions, and often do in

the wake of this Court’s decisions. See Sutton, San Antonio Independent School District v. Rodriguez And Its 

Aftermath, 94 Va. L. Rev. 1963, 1971–1977 (2008). But 

what a state court cannot do is experiment with our Federal Constitution and expect to elude this Court’s review

so long as victory goes to the criminal defendant. “Turning a blind eye” in such cases “would change the uniform 

‘law of the land’ into a crazy quilt.” Marsh, supra, at 185. 

And it would enable state courts to blame the unpopular 

death-sentence reprieve of the most horrible criminals 

upon the Federal Constitution when it is in fact their own 

doing. 

B 

We turn, then, to the merits of the Kansas Supreme

Court’s conclusion that the Eighth Amendment requires 
 

10 KANSAS v. CARR 

Opinion of the Court 

capital-sentencing courts in Kansas “to affirmatively

inform the jury that mitigating circumstances need not be

proven beyond a reasonable doubt.” 299 Kan., at 1197, 

329 P. 3d, at 1148. 

Approaching the question in the abstract, and without

reference to our capital-sentencing case law, we doubt

whether it is even possible to apply a standard of proof to

the mitigating-factor determination (the so-called “selection phase” of a capital-sentencing proceeding). It is possible to do so for the aggravating-factor determination (the

so-called “eligibility phase”), because that is a purely

factual determination. The facts justifying death set forth

in the Kansas statute either did or did not exist—and one 

can require the finding that they did exist to be made

beyond a reasonable doubt. Whether mitigation exists,

however, is largely a judgment call (or perhaps a value

call); what one juror might consider mitigating another

might not. And of course the ultimate question whether

mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy—the quality of 

which, as we know, is not strained. It would mean nothing, we think, to tell the jury that the defendants must 

deserve mercy beyond a reasonable doubt; or must morelikely-than-not deserve it. It would be possible, of course,

to instruct the jury that the facts establishing mitigating

circumstances need only be proved by a preponderance, 

leaving the judgment whether those facts are indeed 

mitigating, and whether they outweigh the aggravators, to

the jury’s discretion without a standard of proof. If we 

were to hold that the Constitution requires the mitigatingfactor determination to be divided into its factual component and its judgmental component, and the former to be

accorded a burden-of-proof instruction, we doubt whether 

that would produce anything but jury confusion. In the 

last analysis, jurors will accord mercy if they deem it 

appropriate, and withhold mercy if they do not, which is 
Cite as: 577 U. S. ____ (2016) 11 

Opinion of the Court 

what our case law is designed to achieve.

In any event, our case law does not require capital

sentencing courts “to affirmatively inform the jury that

mitigating circumstances need not be proved beyond a

reasonable doubt.” Ibid. In Buchanan v. Angelone, 522 

U. S. 269 (1998), we upheld a death sentence even though

the trial court “failed to provide the jury with express 

guidance on the concept of mitigation.” Id., at 275. Likewise in Weeks v. Angelone, 528 U. S. 225 (2000), we reaffirmed that the Court has “never held that the State must 

structure in a particular way the manner in which juries 

consider mitigating evidence” and rejected the contention 

that it was constitutionally deficient to instruct jurors to

“‘consider a mitigating circumstance if you find there is

evidence to support it,’” without additional guidance. Id., 

at 232–233. 

Equally unavailing is the contention that even if an 

instruction that mitigating evidence need not be “proven

beyond a reasonable doubt” is not always required, it was 

constitutionally necessary in these cases to avoid confusion. Ambiguity in capital-sentencing instructions gives 

rise to constitutional error only if “there is a reasonable 

likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of 

constitutionally relevant evidence.” Boyde v. California, 

494 U. S. 370, 380 (1990) (emphasis added). The alleged

confusion stemming from the jury instructions used at the

defendants’ sentencings does not clear that bar. A meager 

“possibility” of confusion is not enough. Ibid. 

As an initial matter, the defendants’ argument rests on

the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that

that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that

standard of proof. The defendants focus upon the follow-
 

12 KANSAS v. CARR 

Opinion of the Court 

ing instruction: “The State has the burden to prove beyond 

a reasonable doubt that there are one or more aggravating 

circumstances and that they are not outweighed by any 

mitigating circumstances found to exist.” App. to Pet. for 

Cert. in No. 14–452, p. 133 (Instr. 8).3 The juxtaposition of

aggravating and mitigating circumstances, so goes the

argument, caused the jury to speculate that mitigating

circumstances must also be proved beyond a reasonable 

doubt. 299 Kan., at 1197, 329 P. 3d, at 1148. It seems to 

us quite the opposite. The instruction makes clear that 

both the existence of aggravating circumstances and the 

conclusion that they outweigh mitigating circumstances 

must be proved beyond a reasonable doubt; mitigating

circumstances themselves, on the other hand, must merely 

be “found to exist.” That same description, mitigating 

circumstances “found to exist,” is contained in three other 

instructions, App. to Pet. for Cert. in No. 14–452, at 133 

(Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly,

since it recites the Kansas statute, see Kan. Stat. Ann. 

§21–4624(e) (1995). “Found to exist” certainly does not

suggest proof beyond a reasonable doubt. The instructions 

as a whole distinguish clearly between aggravating and 

mitigating circumstances: “The State has the burden to 

prove beyond a reasonable doubt that there are one or 

more aggravating circumstances . . . ,” and the jury must 

decide unanimously that the State met that burden. App.

to Pet. for Cert. in No. 14–452, at 133 (Instrs. 8 and 10) 

(emphasis added). “Mitigating circumstances,” on the 

other hand, “do not need to be found by all members of the 

jury” to “be considered by an individual juror in arriving at

his or her sentencing decision.” Id., at 131 (Instr. 7). Not 

once do the instructions say that defense counsel bears the 

—————— 

3The relevant penalty-phase instructions from the Carrs’ sentencing

proceedings are materially indistinguishable. See App. to Pet. for Cert.

in No. 14–450, pp. 501–510. 
Cite as: 577 U. S. ____ (2016) 13 

Opinion of the Court 

burden of proving the facts constituting a mitigating

circumstance beyond a reasonable doubt—nor would that 

make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination. 

We reject the Kansas Supreme Court’s decision that 

jurors were “left to speculate as to the correct burden of

proof for mitigating circumstances.” 299 Kan., at 1197, 

329 P. 3d, at 1148. For the reasons we have described, no 

juror would reasonably have speculated that mitigating 

circumstances must be proved by any particular standard,

let alone beyond a reasonable doubt. The reality is that 

jurors do not “pars[e] instructions for subtle shades of 

meaning in the same way that lawyers might.” Boyde, 

supra, at 381. The instructions repeatedly told the jurors 

to consider any mitigating factor, meaning any aspect of 

the defendants’ background or the circumstances of their 

offense. Jurors would not have misunderstood these 

instructions to prevent their consideration of constitutionally relevant evidence. 

III 

We turn next to the contention that a joint capitalsentencing proceeding in the Carrs’ cases violated the

defendants’ Eighth Amendment right to an “individualized

sentencing determination.” 300 Kan., at 276, 331 P. 3d, at 

717. 

The Kansas Supreme Court agreed with the defendants

that, because of the joint sentencing proceeding, one defendant’s mitigating evidence put a thumb on death’s scale 

for the other, in violation of the other’s Eighth Amendment rights. Ibid. It accepted Reginald’s contention that 

he was prejudiced by his brother’s portrayal of him as the 

corrupting older brother. And it agreed that Reginald was

prejudiced by his brother’s cross-examination of their 

sister, who equivocated about whether Reginald admitted 
 

 

14 KANSAS v. CARR 

Opinion of the Court 

to her that he was the shooter. (Reginald has all but 

abandoned that implausible theory of prejudice before this 

Court and contends only that the State “likely would not 

have introduced any such testimony” had he been sentenced alone. Brief for Respondent in No. 14–450, p. 34, 

n. 3.) Jonathan asserted that he was prejudiced by evidence associating him with his dangerous older brother,

which caused the jury to perceive him as an incurable

sociopath.4 Both speculate that the evidence assertedly 

prejudicial to them would have been inadmissible in severed proceedings under Kansas law. The Kansas Supreme

Court also launched a broader attack on the joint proceedings, contending that the joinder rendered it impossible for 

the jury to consider the Carrs’ relative moral culpability

and to determine individually whether they were entitled

to “mercy.” 300 Kan., at 278, 331 P. 3d, at 718–719. 

Whatever the merits of defendants’ procedural objections, we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” 

As the United States as amicus curiae intimates, the 

Eighth Amendment is inapposite when each defendant’s

claim is, at bottom, that the jury considered evidence that

would not have been admitted in a severed proceeding, 

and that the joint trial clouded the jury’s consideration of 

mitigating evidence like “mercy.” Brief for United States 

24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 

(1994), it is not the role of the Eighth Amendment to 

establish a special “federal code of evidence” governing 

“the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process 

—————— 

4 Jonathan also alleges that he was prejudiced by the jury’s witnessing his brother’s handcuffs, which his brother requested remain visible 

before the penalty phase commenced. That allegation is mystifying. 

That his brother’s handcuffs were visible (while his own restraints were 

not) more likely caused the jury to see Jonathan as the less dangerous

of the two. 
Cite as: 577 U. S. ____ (2016) 15 

Opinion of the Court 

Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally 

unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see 

also Brown v. Sanders, 546 U. S. 212, 220–221 (2006). 

The test prescribed by Romano for a constitutional 

violation attributable to evidence improperly admitted at a

capital-sentencing proceeding is whether the evidence “so

infected the sentencing proceeding with unfairness as to 

render the jury’s imposition of the death penalty a denial

of due process.” 512 U. S., at 12. The mere admission of 

evidence that might not otherwise have been admitted in a 

severed proceeding does not demand the automatic vacatur of a death sentence. 

In light of all the evidence presented at the guilt and 

penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating 

evidence by one brother could have “so infected” the jury’s 

consideration of the other’s sentence as to amount to a 

denial of due process is beyond the pale. To begin with, 

the court instructed the jury that it “must give separate

consideration to each defendant,” that each was “entitled 

to have his sentence decided on the evidence and law 

which is applicable to him,” and that any evidence in the 

penalty phase “limited to only one defendant should not be

considered by you as to the other defendant.” App. to Pet.

for Cert. in No. 14–450, at 501 (Instr. 3). The court gave

defendant-specific instructions for aggravating and mitigating circumstances. Id., at 502–508 (Instrs. 5, 6, 7, and

8). And the court instructed the jury to consider the “individual” or “particular defendant” by using four separate

verdict forms for each defendant, one for each murdered 

occupant of the Birchwood house. Id., at 509 (Instr. 10); 

App. in No. 14–449 etc., at 461–492. We presume the jury

followed these instructions and considered each defendant 

separately when deciding to impose a sentence of death for 

each of the brutal murders. Romano, supra, at 13. 
 

16 KANSAS v. CARR 

Opinion of the Court 

The contrary conclusion of the Kansas Supreme Court—

that the presumption that jurors followed these instructions was “defeated by logic,” 300 Kan., at 280, 331 P. 3d,

at 719—is untenable. The Carrs implausibly liken the

prejudice resulting from the joint sentencing proceeding to

the prejudice infecting the joint trial in Bruton v. United 

States, 391 U. S. 123 (1968), where the prosecution admitted hearsay evidence of a codefendant’s confession implicating the defendant. That particular violation of the

defendant’s confrontation rights, incriminating evidence of 

the most persuasive sort, ineradicable, as a practical

matter, from the jury’s mind, justified what we have described as a narrow departure from the presumption that 

jurors follow their instructions, Richardson v. Marsh, 481 

U. S. 200, 207 (1987). We have declined to extend that 

exception, id., at 211, and have continued to apply the 

presumption to instructions regarding mitigating evidence 

in capital-sentencing proceedings, see, e.g., Weeks, 528 

U. S., at 234. There is no reason to think the jury could

not follow its instruction to consider the defendants separately in this case.

Joint proceedings are not only permissible but are often 

preferable when the joined defendants’ criminal conduct 

arises out of a single chain of events. Joint trial may 

enable a jury “to arrive more reliably at its conclusions

regarding the guilt or innocence of a particular defendant 

and to assign fairly the respective responsibilities of each 

defendant in the sentencing.” Buchanan v. Kentucky, 483 

U. S. 402, 418 (1987). That the codefendants might have

“antagonistic” theories of mitigation, Zafiro v. United 

States, 506 U. S. 534, 538 (1993), does not suffice to overcome Kansas’s “interest in promoting the reliability and

consistency of its judicial process,” Buchanan, supra, at 

418. Limiting instructions, like those used in the Carrs’ 

sentencing proceeding, “often will suffice to cure any risk 

of prejudice.” Zafiro, supra, at 539 (citing Richardson, 
Cite as: 577 U. S. ____ (2016) 17 

Opinion of the Court 

supra, at 211). To forbid joinder in capital-sentencing

proceedings would, perversely, increase the odds of “wanto[n] and freakis[h]” imposition of death sentences. Gregg 

v. Georgia, 428 U. S. 153, 206–207 (1976) (joint opinion of 

Stewart, Powell, and Stevens, JJ.). Better that two defendants who have together committed the same crimes be

placed side-by-side to have their fates determined by a

single jury.

It is improper to vacate a death sentence based on pure

“speculation” of fundamental unfairness, “rather than 

reasoned judgment,” Romano, supra, at 13–14. Only the

most extravagant speculation would lead to the conclusion 

that the supposedly prejudicial evidence rendered the

Carr brothers’ joint sentencing proceeding fundamentally 

unfair. It is beyond reason to think that the jury’s death 

verdicts were caused by the identification of Reginald as

the “corrupter” or of Jonathan as the “corrupted,” the

jury’s viewing of Reginald’s handcuffs, or the sister’s retracted statement that Reginald fired the final shots. 

None of that mattered. What these defendants did—acts 

of almost inconceivable cruelty and depravity—was described in excruciating detail by Holly, who relived with

the jury, for two days, the Wichita Massacre. The joint

sentencing proceedings did not render the sentencing

proceedings fundamentally unfair. 

IV 

When we granted the State’s petition for a writ of certiorari for the Carrs’ cases, we declined to review whether 

the Confrontation Clause, U. S. Const., Amdt. 6, requires

that defendants be allowed to cross-examine witnesses 

whose statements are recorded in police reports referred to

by the State in penalty-phase proceedings. The Kansas 

Supreme Court did not make the admission of those 

statements a basis for its vacating of the death sentences, 

but merely “caution[ed]” that in the resentencing proceed-
 

 

18 KANSAS v. CARR 

Opinion of the Court 

ings these out-of-court testimonial statements should be

omitted, 300 Kan., at 288, 331 P. 3d, at 724. We are confident that cross-examination regarding these police reports

would not have had the slightest effect upon the sentences. See Delaware v. Van Arsdall, 475 U. S. 673, 684 

(1986). 

* * * 

The judgments of the Supreme Court of Kansas are 

reversed, and these cases are remanded for further proceedings not inconsistent with this opinion. 

It is so ordered. 
 

 

_________________ 

_________________ 

Cite as: 577 U. S. ____ (2016) 1 

SOTOMAYOR, J., dissenting 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 14–449, 14-450, and 14–452 

KANSAS, PETITIONER 

14–449 v. 

JONATHAN D. CARR 

KANSAS, PETITIONER 

14–450 v. 

REGINALD DEXTER CARR, JR. 

KANSAS, PETITIONER 

14–452 v. 

SIDNEY J. GLEASON 

ON WRITS OF CERTIORARI TO THE SUPREME COURT OF 

KANSAS
 

[January 20, 2016]

 JUSTICE SOTOMAYOR, dissenting. 

I respectfully dissent because I do not believe these 

cases should ever have been reviewed by the Supreme

Court. I see no reason to intervene in cases like these— 

and plenty of reasons not to. Kansas has not violated any 

federal constitutional right. If anything, the State has

overprotected its citizens based on its interpretation of 

state and federal law. For reasons ably articulated by my

predecessors and colleagues and because I worry that

cases like these prevent States from serving as necessary 

laboratories for experimenting with how best to guarantee 
 

2 KANSAS v. CARR 

SOTOMAYOR, J., dissenting 

defendants a fair trial, I would dismiss the writs as improvidently granted. 

I 

In 2014, the Kansas Supreme Court vacated three death

sentences—the sentences of Sidney Gleason and the Carr 

brothers, Reginald and Jonathan—because of constitutional errors in the penalty phases of their trials.

All three men were tried under jury instructions that

did not include language previously mandated by the 

Kansas Supreme Court. The instructions did not state 

that, under Kansas’ statutory scheme, mitigating circumstances need only be proven to an individual juror’s satisfaction and not beyond a reasonable doubt. 299 Kan. 

1127, 1192–1197, 329 P. 3d 1102, 1145–1148 (2014) (Sidney Gleason); 300 Kan. 1, 302–303, 331 P. 3d 544, 732–

733 (2014) (Reginald Carr); 300 Kan. 340, 368–369, 329 

P. 3d 1195, 1213 (2014) (Jonathan Carr). The court found 

that the instructions therefore both undermined Kansas’ 

state law and created a “reasonable likelihood that the 

jury . . . applied the challenged instruction in a way that

prevents consideration” of mitigating evidence as required

by the Federal Constitution. 299 Kan., at 1191–1197, 329 

P. 3d, at 1144–1148 (quoting Boyde v. California, 494 

U. S. 370, 380 (1990)).

The Kansas Supreme Court also vacated the Carr 

brothers’ death sentences because they were jointly tried

at the penalty phase. The court concluded that each 

brother’s particular case for mitigation compromised the

other brother’s case and therefore that trying them jointly

violated the Eighth Amendment right to individualized

sentencing. The error was not harmless, the Kansas 

Supreme Court found, because an “especially damning 

subset” of the evidence presented might not have been 

admitted in separate penalty proceedings. 300 Kan., at 

275–282, 331 P. 3d, at 717–720; 300 Kan., at 369–370, 329 
 

 

Cite as: 577 U. S. ____ (2016) 3 

SOTOMAYOR, J., dissenting 

P. 3d, at 1212. 

The Kansas attorney general requested certiorari, alleging that it would best serve the State’s interest for a federal court to intervene and correct the Kansas Supreme 

Court. This Court complied, even though there was no 

suggestion that the Kansas Supreme Court had violated 

any federal constitutional right. The majority now reverses

the Kansas Supreme Court on both points. 

II
 

A 

Even where a state court has wrongly decided an “important question of federal law,” Sup. Ct. Rule 10, we often 

decline to grant certiorari, instead reserving such grants

for instances where the benefits of hearing a case outweigh the costs of so doing. My colleagues and predecessors have effectively set forth many of the costs of granting

certiorari in cases where state courts grant relief to criminal defendants: We risk issuing opinions that, while not 

strictly advisory, may have little effect if a lower court is 

able to reinstate its holding as a matter of state law. 

Florida v. Powell, 559 U. S. 50, 66 (2010) (Stevens, J., 

dissenting). We expend resources on cases where the only 

concern is that a State has “‘overprotected’” its citizens. 

Michigan v. Long, 463 U. S. 1032, 1068 (1983) (Stevens, J., 

dissenting). We intervene in an intrastate dispute between the State’s executive and its judiciary rather than

entrusting the State’s structure of government to sort it 

out. See Coleman v. Thompson, 501 U. S. 722, 766–767 

(1991) (Blackmun, J., dissenting). And we lose valuable 

data about the best methods of protecting constitutional 

rights—a particular concern in cases like these, where the 

federal constitutional question turns on the “reasonable

likelihood” of jury confusion, an empirical question best

answered with evidence from many state courts. Cf. 

Arizona v. Evans, 514 U. S. 1, 30–31 (1995) (GINSBURG, J., 
 

 

 

4 KANSAS v. CARR 

SOTOMAYOR, J., dissenting 

dissenting). 

B 

The cases here demonstrate yet another cost of granting

certiorari to correct a state court’s overprotection of federal

rights: In explaining that the Federal Constitution does 

not protect some particular right, it is natural to buttress

the conclusion by explaining why that right is not very

important. In so doing, the Court risks discouraging

States from adopting valuable procedural protections even 

as a matter of their own state law. 

State experimentation with how best to guarantee a fair 

trial to criminal defendants is an essential aspect of our 

federalism scheme. See, e.g., Linde, First Things First:

Rediscovering the States’ Bill of Rights, 9 U. Balt. L. Rev. 

379, 393 (1980). The Federal Constitution guarantees 

only a minimum slate of protections; States can and do 

provide individual rights above that constitutional floor.

See, e.g., Brennan, The Bill of Rights and the States: the 

Revival of State Constitutions as Guardians of Constitutional Rights, 61 N. Y. U. L. Rev. 535, 548–550 (1986). 

That role is particularly important in the criminal arena 

because state courts preside over many millions more 

criminal cases than their federal counterparts and so are 

more likely to identify protections important to a fair trial. 

Compare Court Statistics Project, Examining the Work of

State Courts: An Analysis of 2010 State Court Caseloads

19–21 (2012), with Dept. of Justice, Bureau of Justice 

Statistics, Federal Justice Statistics 2011–2012, pp. 19–20

(Jan. 2015) (Tables 11 and 12). 

The majority’s opinion in these cases illustrates how an

unnecessary grant of certiorari can lead to unexpected

costs by disrupting this sort of state experimentation.

Take the first question presented in these cases. The 

majority’s actual holding is that the Eighth Amendment

does not require an instruction specifying that mitigating 
Cite as: 577 U. S. ____ (2016) 5 

SOTOMAYOR, J., dissenting 

factors need not be proven beyond a reasonable doubt. 

Ante, at 11–12. The Eighth Amendment has nothing to 

say about whether such an instruction is wise as a question of state law or policy. But the majority nonetheless 

uses this Court’s considerable influence to call into question the logic of specifying any burden of proof as to mitigating circumstances. The majority claims that while 

assessing an aggravating factor is “a purely factual determination,” assessing mitigation involves “a judgment call 

(or perhaps a value call)” and is thus not amenable to

burdens of proof. Ante, at 10. Short of dividing the mitigating factor “into its factual component and its judgmental component,” and issuing burden-of-proof instructions

only as to the former, the majority wonders “whether it is 

even possible to apply a standard of proof to the mitigatingfactor determination.” Ibid. 

By this observation, and with no experience with the

needs of juries, the majority denigrates the many States 

that do specify a burden of proof for the existence of mitigating factors as a matter of state law, presumably under 

the belief that it is, in fact, “possible” to do so.* Brief for 

Respondent in No. 14–452, pp. 28–29, and n. 6. Some 

States even recommend an instruction specifying that

mitigating factors need not be proven beyond a reasonable 

doubt. See, e.g., Idaho Jury Instr., Crim., ICJI 1718, Jury 

Deliberations (2010); Okla. Jury Instr., Crim, OUJI–CR 4–

78 (2015).

The majority’s discussion of severance likewise short 

circuits state experimentation. The majority is not con-

—————— 

* I leave aside the merits of the majority’s questionable distinction,

though I cannot see how the jury’s conclusion that the Carr brothers

committed their crime “in an especially heinous, atrocious or cruel 

manner”—one of the aggravating circumstances found by the Carr 

brothers’ jury—involved any less of a judgment or value call than the 

mitigating circumstances alleged. See 300 Kan. 1, 282–283, 331 P. 3d 

544, 721 (2014). 
 

6 KANSAS v. CARR 

SOTOMAYOR, J., dissenting 

tent to hold that the Eighth Amendment does not, strictly

speaking, require severance of capital penalty proceedings. 

Instead, it goes on to explain why joint capital sentencing

proceedings are not only permissible under the Federal 

Constitution but are, in fact, preferable as a policy matter:

“Better that two defendants who have together committed

the same crimes be placed side-by-side to have their 

fates determined by a single jury.” Ante, at 17. The majority even intimates that severed proceedings may be 

worse for defendants: “To forbid joinder in capitalsentencing proceedings would, perversely, increase the 

odds of ‘wanto[n] and freakis[h]’ imposition of death sentences.” Ibid. (quoting Gregg v. Georgia, 428 U.S. 153, 

206–207 (1976) (joint opinion of Stewart, Powell, and 

Stevens, JJ.).

So much for Ohio’s, Georgia’s, and Mississippi’s sentencing regimes, all of which routinely allow severance at both

phases of capital proceedings. See Ga. Code Ann. §17–8–4

(2013) (upon request, defendants must be tried separately 

in capital cases); Miss. Code Ann. §99–15–47 (2015) 

(same); Ohio Rev. Code Ann. §2945.20 (Lexis 2014) (capital defendants shall be tried separately unless good cause

is shown for a joint trial). There is no evidence that any of 

those three States adopted a severance regime based on a 

misunderstanding of the Eighth Amendment. But without 

any empirical foundation or any basis in experience, the

majority asserts that such regimes may increase the odds

of arbitrariness. 

The majority claims that we “‘return power to the State, 

and to its people,’” when we explain that the Federal

Constitution does not require a particular result. Ante, at 

9 (emphasis deleted). But that is only so when the Court

is able to pass solely on the federal constitutional ground

and not the wisdom of a state holding on an equivalent

question. Though the Court pretends that it sends back 

cases like this one with a clean slate, it rarely fully erases 
Cite as: 577 U. S. ____ (2016) 7 

SOTOMAYOR, J., dissenting 

its thoughts on the virtues of the procedural protection 

at issue. By placing a thumb on the scale against a 

State adopting—even as a matter of state law—procedural protections the Constitution does not require, the 

Court risks turning the Federal Constitution into a

ceiling, rather than a floor, for the protection of individual

liberties. 

III 

I see no reason why these three cases out of the Kansas 

Supreme Court warranted our intervention given the costs

that I have just described and those described by my

predecessors and colleagues, see supra, at 3. No federal 

right has been compromised. And nobody disputes that

the State of Kansas could, as a matter of state law, reach 

the same outcome. 

Perhaps most importantly, both of the questions on

which the Court granted certiorari turn on specific features of Kansas’ sentencing scheme. As a result, the 

Kansas Supreme Court’s opinion is unlikely to have much

salience for other States. If the Kansas Supreme Court 

was wrong, its wrong opinion will not subvert federal law 

on a broader scale. 

First, the Kansas court’s decision on the jury instruction

question aimed to “both preserv[e] the [state] statute’s 

favorable distinction and protec[t] a capital defendant’s

Eighth Amendment right to individualized sentencing by

ensuring jurors are not precluded from considering all 

relevant mitigating evidence.” 299 Kan., at 1196, 329 

P. 3d, at 1147 (emphasis added). The Kansas Supreme 

Court’s decision was thus informed by a combination of 

federal and state considerations. A decision that expressly

relies on a State’s unique statutory scheme—as did the

Kansas Supreme Court’s here—has limited potential for 

influencing other States. 

It is not absurd to conclude that a juror unfamiliar with 
 

 

8 KANSAS v. CARR 

SOTOMAYOR, J., dissenting 

the mechanics of the law might be confused by Kansas’ 

jury instructions, which almost always mention aggravating and mitigating instructions in the same breath. Id., at 

1196–1197, 329 P. 3d, at 1147–1148. The Kansas Supreme Court’s opinion rested largely on the specific language and ordering of that State’s instructions. Other 

States’ jury instructions may be less likely to have the 

same effect. 

Moreover, the decision below was made against the

unique backdrop of trial courts’ failure to implement the 

Kansas Supreme Court’s earlier demands for a change to 

jury instructions in capital cases. In a 2001 case, the 

Kansas Supreme Court considered the jury instructions 

insufficiently confusing to reverse the judgment, but sufficiently confusing to demand higher clarity going forward:

“[A]ny instruction dealing with the consideration of mitigating circumstances should state (1) they need to be

proved only to the satisfaction of the individual juror in

the juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to

be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.” State v. 

Kleypas, 272 Kan. 894, 1078, 40 P. 3d 139, 268. The Kansas pattern instructions were then revised to include 

consideration (2), but—“inexplicably,” as the court noted 

in Gleason—not consideration (1). 299 Kan., at 1193, 329 

P. 3d, at 1145. The Kansas Supreme Court reiterated the 

two requirements for any jury instruction in 2008, see 

State v. Scott, 286 Kan. 54, 106–108, 183 P. 3d 801, 837, 

and the pattern instructions were finally changed in 2011, 

see 299 Kan., at 1193, 329 P. 3d, at 1145. But Gleason 

and the Carr brothers were tried in the 10-year delay

between the Kansas Supreme Court’s initial admonition

and when the jury instructions were finally edited. The 

Kansas Supreme Court’s opinion in Gleason may have

rested in part on a “broader Eighth Amendment princi-
 

 

Cite as: 577 U. S. ____ (2016) 9 

SOTOMAYOR, J., dissenting 

ple,” but it also rested on some lower courts’ failure to give

instructions reflecting the Kansas Supreme Court’s “repeated recognition of the required content.” 299 Kan., at 

1195, 329 P. 3d, 1146, 1147. Given this context, the Kansas Supreme Court’s decision is particularly unlikely to

undermine other States or the Federal Constitution. 

The same goes for the severance question. The Kansas 

Supreme Court’s decision depended on the “especially 

damning subset” of the aggravating evidence presented

that may not have been admitted in a severed proceeding 

under Kansas’ capital punishment scheme and evidentiary 

rules, such as evidence that one brother was a bad influence on the other. Ibid. But the difference between a joint 

penalty phase and a severed penalty phase may be of 

limited significance in States where the same evidence

may be admitted in joint and severed proceedings. Cf. 

Brown v. Sanders, 546 U. S. 212, 217 (2006); L. Palmer, 

The Death Penalty in the United States: A Complete

Guide to Federal and State Laws 137 (2d ed. 2014). It 

thus seems to me unlikely that the Kansas Supreme 

Court’s opinion would have proven instructive in other 

States, even though it was couched in the language of the 

Federal Constitution. 

IV 

There may, of course, be rare cases where certiorari is

warranted in which a state prosecutor alleges that a 

State’s highest court has overprotected a criminal defendant. These circumstances may include: Where a state

court’s decision in favor of a criminal defendant implicates 

another constitutional right, see, e.g., Nebraska Press 

Assn. v. Stuart, 427 U. S. 539, 547 (1976); where a state

court indicates a hostility to applying federal precedents, 

Florida v. Meyers, 466 U. S. 380, 383 (1984) (per curiam)

(Stevens, J., dissenting); or where a state court’s grant of

relief is particularly likely to destabilize or significantly 

interfere with federal policy. None of those circumstances, 
 

10 KANSAS v. CARR 

SOTOMAYOR, J., dissenting 

and no comparable interest, is present in these cases.

The Carr brothers committed acts of “almost inconceivable cruelty and depravity,” and the majority is understandably anxious to ensure they receive their just deserts. (So anxious, in fact, that it reaches out to address a 

question on which we did not grant certiorari at all. Ante, 

at 17). But I do not believe that interest justifies not only 

“correcting” the Kansas Supreme Court’s error but also 

calling into question the procedures of other States. 

The standard adage teaches that hard cases make bad 

law. See Northern Securities Co. v. United States, 193 

U. S. 197, 364 (1904) (Holmes, J., dissenting). I fear that 

these cases suggest a corollary: Shocking cases make too 

much law. Because I believe the Court should not have 

granted certiorari here, I respectfully dissent.