2014—In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that 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.”

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1.