1 (Slip Opinion) OCTOBER TERM, 2015

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 elder

ly man.

A Kansas jury sentenced respondents Reginald and Jonathan Carr, brothers, to death after a joint se ntencing proceeding. Respondents were convicted of various charges stemming from a notorious crimespree that culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women.

The Kansas Supreme Court vaca ted the death sentences in each case, holding that the sentencing instructions violated the Eighth Amendment by failing “to affirmativel y inform the jury that mitigat

ing circumstances need only be proved to the satisfacti on of the indi

vidual juror in that juror’s sentencing decision and not beyond a rea

sonable doubt.” It also held that the Carrs’ Eighth Amendment right “to an individualized capital senten cing 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 rul

ing was based on the Federal Cons titution, Gleason’s initial argu

ment—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 re

quiring a court to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt. See, e.g., Buchanan v. An

gelone , 522 U. S. 269, 275. Nor was such an instruction constitution

ally necessary in these particular cases to avoid confusion. Ambigui

ty 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 th at 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 un

constitutional to require the defense to prove mitigating circumstanc

es beyond a reasonable doubt, the record belies the defendants’ con

tention 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 requ ire severance of the Carrs’ joint sentencing proceedings. The Eighth Amendment is inapposite when a defendant’s claim is, at bottom, that evidence was improperly ad

mitted at a capital-sentencing proc eeding. The question is whether the allegedly improper evidence “s o infected the sentencing proceed

ing 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 sent encing determination, the conten

tion that the admission of mitiga ting evidence by one Carr brother could have “so infected” the jury’s consideration of the other’s sen

tence as to amount to a denial of due process is beyond the pale. The Court presumes that the jury followe d its instructions to “give sepa

rate consideration to each defendant.” Bruton v. United States , 391
U. S. 123, distinguished. Joint proceedings are permissible and often preferable when the joined defendan ts’ criminal conduct arises out of a single chain of events. Buchanan v. Kentucky , 483 U. S. 402, 418. Limiting instructions, like those gi ven in the Carrs’ proceeding, “of

ten 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 sen

tence 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

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

Syllabus

posedly prejudicial evidence rend ered the Carr brothers’ joint sen

tencing proceeding fundamentally unf air when their acts of almost inconceivable cruelty and depravity were described in excruciating detail by the sole su rvivor, who, for two da ys, 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.

S CALIA , J., delivered the opinion of the Court, in which R OBERTS

, C. J., and K ENNEDY , T HOMAS , G INSBURG , B REYER , A LITO , and K AGAN

, JJ., joined. S OTOMAYOR , J., filed a dissenting opinion._________________

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

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, Wash

ington, 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, J R

.

KANSAS, PETITIONER

14–452 v. SIDNEY J. GLEASON

ON WRITS OF CERTIORARI TO THE SUPREME COURT OF
KANSAS

[January 20, 2016]

J USTICE S CALIA delivered the opinion of the Court.
The Supreme Court of Kansas vacated the death sen

tences of Sidney Gleason and brothers Reginald and Jona

than 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 requi red the sentencing courts to instruct the juries that mitigating circumstances “need

not be proved beyond a reaso nable doubt.” And second,2 KANSAS v. CARR

Opinion of the Court

whether the Constitution requi red 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 knife

point. 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 Mar

tinez 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 kid

naping of Martinez, attempted first-degree murder and aggravated robbery of the elderly man, and criminal pos

session 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 aggravat ing circumstances and unani

mously agreed to a sentence of death. Id., at 1146–1147, 329 P. 3d, at 1120–1121.

B
In December 2000, brothers Reginald and Jonathan

——————

1 The facts for this portion of the opinion come from the Kansas Su

preme Court, 299 Kan. 1127, 1134–1147, 329 P. 3d 1102, 1113–1121 (2014), and the parties’ briefs.3 Cite as: 577 U. S. ____ (2016)

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 esca pe, 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 pene

trate 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

——————

2 The facts for this portion of the opinion come from the Kansas Su

preme 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 uri

nated 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 s trewn with boxes of Christ

mas 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 vi ctims 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 di

rected Heather to the front of the car and Holly to Jason’s pickup truck, driven by Reginald. Once the vehicles ar

rived 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 go ing 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 her5 Cite as: 577 U. S. ____ (2016)

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 do wn 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. Investig ators 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 kid

naping, 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-degreefelony 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 mur

der, 5 counts of aggravated kidnaping, 9 counts of aggra

vated 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 16 KANSAS v. CARR

Opinion of the Court

count of cruelty to animals. The jury also convicted Reg

inald 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 pro

secution; and that they committed the crimes in an espe

cially 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 se parate verdicts of death for Reginald and Jonathan. It found unanimously that the State proved the existence of the four aggravating circum

stances beyond a reasonable doubt and that those aggra

vating circumstances outweighed the mitigating circum

stances, 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’ sent encing 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,7 Cite as: 577 U. S. ____ (2016)

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 “in

hibited the jury’s individualized consideration of [Jona

than] because of family characteristics tending to demon

strate future dangerousness that he shared with his brother”; and his brother’s visi ble handcuffs prejudiced the jury’s consideration of his sentence. 300 Kan., at 275, 331

P. 3d, at 717

. As for Reginald, he was prejudiced, accord

ing 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 sepa

ration and analysis.” Ibid. , 331 P. 3d, at 719–720. The Kansas Supreme Court found itself unable to “say that the8 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 contentionthat 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 argu

ment 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 reiter

ated 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 dis

cussion 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 consider ation of all relevant miti

gating 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 capital9 Cite as: 577 U. S. ____ (2016)

Opinion of the Court

defendant’s Eighth Amendment right to individualized sentencing,” that the absence of the instruction “im

plicat[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 (S CALIA , 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 Anto

nio 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 Fed

eral Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant. “Turn

ing 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 requires10 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 determinat ion (the so-called “selec

tion phase” of a capital-sentencing proceeding). It is pos

sible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely
factual determination. The fa cts 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 circum

stances is mostly a question of mercy—the quality of which, as we know, is not strained. It would mean noth

ing, we think, to tell the jury that the defendants mustdeserve 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 pr oved 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 Consti tution requires the mitigatingfactor determination to be divided into its factual compo

nent 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 is11 Cite as: 577 U. S. ____ (2016)

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. Like

wise in Weeks v. Angelone , 528 U. S. 225 (2000), we reaf

firmed 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 de ficient 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 ev idence need not be “proven beyond a reasonable doubt” is not always required, it was constitutionally necessary in these cases to avoid confu

sion. Ambiguity in capital-sentencing instructions gives rise to constitutional error only if “there is a reasonable
likelihood that the jury has applied the challenged in

struction 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 re

quire the defense to prove mitigating circumstances be

yond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ conten

tion 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

——————

3 The relevant penalty-phase instructions from the Carrs’ sentencing proceedings are materially indistinguishable. See App. to Pet. for Cert. in No. 14–450, pp. 501–510.13 Cite as: 577 U. S. ____ (2016)

Opinion of the Court

burden of proving the facts constituting a mitigating circumstance beyond a reaso nable doubt—nor would that make much sense, since one of the mitigating circum

stances 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 sp eculated 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 co nsideration of constitution

ally 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 de

fendant’s mitigating evidence put a thumb on death’s scale for the other, in violation of the other’s Eighth Amend

ment rights. Ibid . It accepted Reginald’s contention that he was prejudiced by his brot her’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 admitted14 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 sen

tenced alone. Brief for Respondent in No. 14–450, p. 34,

n. 3.) Jonathan asserted that he was prejudiced by evi

dence 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 sev

ered proceedings under Kansas law. The Kansas Supreme Court also launched a broader attack on the joint proceed

ings, 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 de fendants’ procedural objec

tions, we will not shoehorn them into the Eighth Amend

ment’s prohibition of “cruel and unusual punishments.”
As the United States as amicus curiae intimates, the Eighth Amendment is inapposi te 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 pro

ceedings.” Id. , at 11–12. Rather, it is the Due Process

——————

4 Jonathan also alleges that he was prejudiced by the jury’s witness

ing his brother’s handcuffs, which hi s 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.15 Cite as: 577 U. S. ____ (2016)

Opinion of the Court

Clause that wards off the introduction of “unduly prejudi

cial” 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 othe rwise have been admitted in a severed proceeding does not demand the automatic vaca

tur of a death sentence. In light of all the evidence presented at the guilt and penalty phases relevant to th e jury’s sentencing determi

nation, 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 instruction s for aggravating and miti

gating circumstances. Id., at 502–508 (Instrs. 5, 6, 7, and 8). And the court instructed the jury to consider the “indi

vidual” 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 im pose 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 instruc

tions 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 admit

ted hearsay evidence of a codefendant’s confession impli

cating 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 de

scribed 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 sepa

rately 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 respe ctive 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 over

come 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 w ill suffice to cure any risk of prejudice.” Zafiro

, supra, at 539 (citing Richardson

,17 Cite as: 577 U. S. ____ (2016)

Opinion of the Court

supra , at 211). To forbid joinder in capital-sentencing proceedings would, perversely, increase the odds of “wan

to[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 de

fendants 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 prejudic ial 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 re

tracted statement that Reginald fired the final shots.
None of that mattered. What these defendants did—acts of almost inconceivable cruelty and depravity—was de

scribed 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 certio

rari 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 confi

dent that cross-examination regarding these police reportswould 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 pro

ceedings not inconsistent with this opinion.

It is so ordered._________________

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

S OTOMAYOR

, 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, Wash

ington, 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, J R

.

KANSAS, PETITIONER

14–452 v. SIDNEY J. GLEASON

ON WRITS OF CERTIORARI TO THE SUPREME COURT OF
KANSAS

[January 20, 2016]

J USTICE S OTOMAYOR , 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 experimentin g with how best to guarantee2 KANSAS v. CARR

S OTOMAYOR

, J., dissenting

defendants a fair trial, I would dismiss the writs as improvi

dently 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 constitu

tional 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 circum

stances need only be proven to an individual juror’s satis

faction and not beyond a reasonable doubt. 299 Kan. 1127, 1192–1197, 329 P. 3d 1102, 1145–1148 (2014) (Sid

ney 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 mi tigating 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 bec ause 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, 3293 Cite as: 577 U. S. ____ (2016)

S OTOMAYOR

, J., dissenting

P. 3d, at 1212. The Kansas attorney general requested certiorari, alleg

ing that it would best serve the State’s interest for a fed

eral 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 “im

portant 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 out

weigh the costs of so doing. My colleagues and predeces

sors have effectively set forth many of the costs of granting
certiorari in cases where state courts grant relief to crimi

nal defendants: We risk issuing opinions that, while not strictly advisory, may have littl e 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 be

tween 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 quest ion 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) (G INSBURG

, J.,4 KANSAS v. CARR

S OTOMAYOR

, 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 righ t, 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 Constitu

tional 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 protection s 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 mitigating5 Cite as: 577 U. S. ____ (2016)

S OTOMAYOR

, 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 ques

tion of state law or policy. But the majority nonetheless uses this Court’s considerable influence to call into ques

tion the logic of specifying any burden of proof as to miti

gating circumstances. The majority claims that while assessing an aggravating factor is “a purely factual deter

mination,” 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 miti

gating factor “into its factual component and its judgmen

tal component,” and issuing burden-of-proof instructions only as to the former, the majority wonders “whether it is even possible to appl y 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 miti

gating 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. Jur y 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 especia lly heinous, atrocious or cruel manner”—one of the aggravating ci rcumstances 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

S OTOMAYOR

, J., dissenting

tent to hold that the Eighth Amendment does not, strictly speaking, require severance of capital penalty proceedings. Instead, it goes on to explai n 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 ma

jority even intimates that severed proceedings may beworse for defendants: “To forbid joinder in capitalsentencing proceedings would, perversely, increase the odds of ‘wanto[n] and freakis[h]’ imposition of death sen

tences.” 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 sentenc

ing 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) (capi

tal 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 erases7 Cite as: 577 U. S. ____ (2016)

S OTOMAYOR

, J., dissenting

its thoughts on the virtues of the procedural protection at issue. By placing a thumb on the scale against aState 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 fea

tures 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 deci sion 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 with8 KANSAS v. CARR

S OTOMAYOR

, J., dissenting

the mechanics of the law might be confused by Kansas’ jury instructions, which almost always mention aggravat

ing and mitigating instructions in the same breath. Id., at 1196–1197, 329 P. 3d, at 1147–1148. The Kansas Su

preme Court’s opinion rested largely on the specific lan

guage 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 suffi

ciently confusing to demand hi gher clarity going forward: “[A]ny instruction dealing with the consideration of miti

gating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror inthe 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 consid

ered in an individual juror’s sentencing decision.” State v. Kleypas , 272 Kan. 894, 1078, 40 P. 3d 139, 268. The Kan

sas 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

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

S OTOMAYOR

, J., dissenting

ple,” but it also rested on some lower courts’ failure to give instructions reflecting the Kansas Supreme Court’s “re

peated recognition of the required content.” 299 Kan., at 1195, 329 P. 3d, 1146, 1147. Given this context, the Kan

sas 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 influ

ence 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 defend

ant. 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

S OTOMAYOR

, J., dissenting

and no comparable interest, is present in these cases.
The Carr brothers committed acts of “almost inconceiv

able cruelty and depravity,” and the majority is under

standably anxious to ensure they receive their just de

serts. (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.