Amicus Curiae Brief — Matthew Marshall, Petitioner v. Julie L. Jones, Secretary, Florida Department of Corrections

NO. 17-7869

IN THE

____________

MATTHEW MARSHALL, PETITIONER,

V.

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

RESPONDENT.

________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

________

MOTION FOR LEAVE TO FILE

BRIEF OF AMICUS CURIAE

THE PROMISE OF JUSTICE INITIATIVE &

AMICUS BRIEF IN SUPPORT OF PETITIONER BY

THE PROMISE OF JUSTICE INITIATIVE

_______________________

G. BEN COHEN*

BLYTHE TAPLIN

CECELIA T. KAPPEL

THE PROMISE OF JUSTICE INITIATIVE

636 BARONNE STREET

NEW ORLEANS, LA. 70115

504-529-5955

benc@thejusticecenter.org

*COUNSEL OF RECORD FOR AMICUS CURIAE

-1NO. 17-7869

IN THE

____________

MATTHEW MARSHALL, PETITIONER,

V.

JULIE L. JONES, SECRETARY,

FLORIDA DEPARTMENT OF CORRECTIONS,

RESPONDENT.

MOTION FOR LEAVE TO FILE

BRIEF OF AMICUS CURIAE

THE PROMISE OF JUSTICE INITIATIVE

Petitioner in this case was sentenced to death

by a government magistrate, despite a jury’s

recommendation of life. Respondent seeks his

execution despite the broad trend amongst the

states that “require[s] use of the death penalty be

restrained … reserved for the worst crimes and

limited in its instances of application” and

“require[s] adherence to a rule reserving its use, at

this stage of evolving standards” to – at the most –

those instances where a jury determined that death

was the appropriate punishment.

As such, this case presents an extraordinary

circumstance that has broad significance to the

constitutional discourse, sitting at the intersection

of the Sixth Amendment’s right to trial by jury and

the Eighth Amendment’s requirement that

-2imposition of punishment be governed by the

evolving standards of decency.

The Promise of Justice Initiative (PJI) is a

non-profit law office dedicated to upholding

constitutional integrity. PJI has filed amicus briefs

in this Court, and a number of state supreme courts,

addressing the emerging national consensus on the

excessiveness of capital punishment and the central

role of the jury in sentencing.

This includes amicus briefs in Glossip v.

Gross, 2015 U.S. S. Ct. Briefs LEXIS 1109, Brief of

Amici, The Promise of Justice et al,; McCoy v.

Louisiana, 2017 U.S. S. Ct. Briefs LEXIS 4484, Brief

of Amici, The Promise of Justice et al,; Brumfield v.

Cain, 2015 U.S. Ct. Briefs LEXIS 1999, (same), and

in the state courts in Washington and Delaware in

Scherf v. State (pending) and Rauf v. State, 145 A.

3d 430 (Del. 2016) (“Rauf is joined by amicus curiae,

who echo his arguments, but who also make a more

fundamental argument, which is that there is no

more fundamentally important role for a jury fairly

drawn from the community than determining

whether a defendant should live or die.”).

PJI continues to believe that the time is near

for this Court to address “whether, given the

thousands of homicides committed each year, and

the handful of death sentences and executions, the

death penalty fails to make a measurable

contribution to acceptable goals of punishment and

is out of proportion to the offense, see Glossip v.

Gross, 135 S.Ct. 2726, 2755 (2015) (Breyer, J.,

Ginsburg, J., dissenting) ("I would ask for full

-3briefing on a more basic question: whether the death

penalty violates the Constitution."). But to the

extent this Court pretermits answering that

question, it should address and constrain outlier

procedures for sentencing that are so out of touch

with our evolving standards of decency.

Counsel timely gave notice of intent to file an

amicus brief in this case on behalf of the Promise of

Justice Initiative.

Petitioner granted consent.

Respondent indicated that it took no position.

Wherefore, for the forgoing reasons, amicus

respectfully asks the Court grant the motion for

leave to file an amicus brief, and then to grant

certiorari in this case and consider whether

evolution in the standards of decency that mark a

civilized society render the execution of a death

sentence imposed by an elected judge over the vote

of a jury constitutes cruel and unusual punishment.

Respectfully submitted,

G. BEN COHEN*

BLYTHE TAPLIN

CECELIA T. KAPPEL

THE PROMISE OF JUSTICE INITIATIVE

636 BARONNE STREET

NEW ORLEANS, LA. 70115

504-529-5955

benc@thejusticecenter.org

*COUNSEL OF RECORD FOR AMICUS CURIAE

i

TABLE OF CONTENTS

TABLE OF CONTENTS ......................................... i

TABLE OF AUTHORITIES ................................. iv

INTERESTS OF AMICUS CURIAE ..................... 1

SUMMARY OF ARGUMENT ............................... 2

ARGUMENT .......................................................... 5

I. OBJECTIVE INDICATORS REVEAL THE

PREVAILING STANDARDS OF DECENCY.. 5

II. THE

VAST

MAJORITY

OF

JURISDICTIONS

HAVE

EITHER

REJECTED

CAPITAL

PUNISHMENT

ENTIRELY OR RESERVED THE DEATH

PENALTY FOR THOSE INSTANCES IN

WHICH

THE

PUNISHMENT

IS

CONFIRMED BY A UNANIMOUS JURY ...... 6

A. Thirty-Five Jurisdictions Have

Either Removed the Death Penalty

Entirely Or Exhibit Long Term

Disuse. ........................................................ 7

1.

Twenty jurisdictions do not have the

death penalty...................................... 8

2.

Four additional jurisdictions have

suspended the death penalty and

exhibit long-term disuse. .................... 9

3.

Six

Additional

Jurisdictions

Exhibited Have Constitutionally

Significant Long-Term Disuse and

no Expected Use ............................... 10

ii

4.

Five Additional Jurisdictions Have

Not Used the Death Penalty For Ten

Years. ................................................ 11

B. The Vast Majority Of Jurisdictions

Are Part of A Trend That Requires

A Jury To Decide Whether A Person

Lives Or Dies ........................................... 12

1.

In Twenty-Four Jurisdictions That

Authorize Capital Punishment, A

Death Sentence May Now only be

imposed by a Jury. ........................... 12

2.

There is a strong trend towards

limiting the death determination to a

jury. .................................................. 12

C. Less

Than

A

Handful

Of

Jurisdictions Permit A Death

Sentence To Be Imposed By A

Judge, And The Number Of JudgeDeath Sentences Is Minimal ................ 14

1.

Only four jurisdictions nationwide

currently permit a death sentence to

be imposed where a sentencing jury

has not concluded the sentence is

warranted ......................................... 14

2.

The Number of Individuals Under A

Judge-Imposed Death Sentence Is

Less Than The Number This Court

Found Dispositive in Graham v.

Florida .............................................. 16

iii

III.JUDGE-IMPOSED DEATH SENTENCES

FAIL TO REFLECT THE COMMUNITY

CONSENSUS

AND

ARE

NOT

SUFFICIENTLY RELIABLE TO COMPLY

WITH THE EIGHTH AMENDMENT ........... 17

A. Juries Play An Important Role In

Death Penalty Process. .......................... 18

B. Juries Protect Against Unreliable

Death Sentences ..................................... 19

C. Juries

Are

A

Fundamental

Protection Against Prejudice.............. 22

D. Juries Enhance Confidence In The

Administration

Of

Capital

Punishment ............................................. 23

IV. EVOLVING STANDARDS OF DECENCY

NOW PROHIBIT JUDGE-BASED DEATH

SENTENCES .................................................. 25

CONCLUSION ..................................................... 27

iv

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)..... 5, 12, 20

Beck v. Alabama, 447 U.S. 625 (1980) .............. 20

Coker v. Georgia, 433 U.S. 584 (1977) ................ 15

Enumnd v. Florida, 458 U.S. 782 (1982) .............. 4

Franklin v. Lynaugh, 487 U.S. 164 (1988) .......... 20

Glossip v. Gross, 135 S.Ct. 2726 (2015)...... passim

Graham v. Florida, 560 U.S. 48 (2010) . 5, 6, 16, 27

Gregg v. Georgia, 428 U.S. 153 (1976) ........ passim

Hall v. Florida, 134 S. Ct. 1986 (2014) ....... passim

Harris v. Alabama, 513 U.S. 504, 518 (1995) ..... 19

Heiney v. Florida, 469 U.S. 920 (1984) ............... 21

Hurst v. State, 202 So. 3d 40 (Fla. 2016)............. 13

Lockett v. Ohio, 438 U.S. 586 (1978) ............. 20, 26

Mackey v. United States, 401 U.S. 667 (1971) .... 27

McCleskey v. Kemp, 481 U.S. 279 (1987.............. 22

Middleton v. Florida, 17-6735, 2018 U.S.

LEXIS 1511, at *1 (Feb. 26, 2018) ................... 17

Miller v. Alabama, 567 U.S. 460 (2012) .......... 6, 27

Montgomery v. Louisiana, 136 S. Ct. 718

(2016) ................................................................. 27

Pena-Rodriguez v. Colorado, 137 S. Ct. 855

(2017) ............................................................. 1, 22

Penry v. Lynaugh, 492 U.S. 302 (1989) ........... 4, 18

Ring v. Arizona, 536 U.S. 584 (2002) .................. 19

Roper v. Simmons, 543 U.S. 551 (2005) .......... 5, 12

Satterwhite v. Texas, 486 U.S. 249 (1988)........... 18

Stanford v. Kentucky, 492 U.S. 361 (1989) ......... 12

Thompson v. Oklahoma, 487 U.S. 815 (1988) ....... 4

Trop v. Dulles, 356 U.S. 86 (1958). .................... 2, 5

v

Weems v. United States, 217 U.S. 349 (1909) ....... 5

Witherspoon v. Illinois, 391 U.S. 510 (1968) . 18, 19

Woodson v. North Carolina, 428 U.S. 280

(1976) ................................................................. 26

Woodward v. Alabama, 134 S. Ct. 405

(2013) ........................................................... 18, 19

STATUTES

14 V.I. C. § 923(a) ................................................... 8

18 U.S.C.S. § 3593 ................................................ 11

21 Okl. St. § 701.11 .............................................. 12

9 G.C.A. § 16.39(b) ................................................. 8

Ala. Stat. Ann. 13A-5-46 ................................ 11, 14

Ariz. Rev. Stat. Ann. §13–751(F) ......................... 11

Ark. Code Ann. § 5-4-603 ..................................... 11

C.N.M.I. Const. Art. I § 4(i) ................................... 7

Cal. Penal Code § 190.3 (Deering) ....................... 11

Florida, Fla. Stat. Ann. § 921.141 ....................... 11

Ga. Code Ann. § 17-10-2 (Lexis 2017) ................. 11

Idaho Code Ann. §19-2515 (Lexis 2017) .............. 11

Ind. Code Ann. § 35-50-2-9 (Lexis 2018) ............. 15

Kan. Stat. Ann. § 21-6617 (Lexis 2018) .............. 11

Ky. Rev. Stat. § 532.025 (Lexis 2018) ................. 11

La. C. Cr. P. Art. 905.1 et seq.; ............................ 12

Miss. Code Ann. § 99-19-101 ............................... 12

Mo. Rev. Stat. § 565.030 (Lexis 2018) ................. 15

N.C. Gen. Stat. § 15A-2000 (Lexis 2017) ............ 12

N.H. Rev. Stat. Ann. §630:5 (Lexis 2017) ........... 11

Neb. Rev. Stat. § 29-2522 .................................... 15

Nev. Rev. Stat. Ann. § 200.030 ............................ 12

Ohio Rev. Code Ann. § 2929.03 ........................... 12

P.R. Const. Art. II § 7............................................. 7

S.C. Code Ann. § 16-3-20 ..................................... 12

vi

S.D. Codified Laws § 23A-27A-2 (Lexis 2017) .... 11

T. C. A. § 39-13-204 .............................................. 12

Tex. Crim. Proc. Code Ann. § 37.071 ................... 12

U.C.A. § 76-3-206 ................................................. 12

Va. Code Ann. § 19.2-264.4 .................................. 12

OTHER AUTHORITIES

David L. Faigman, Reconciling Individual

Rights

and

Government

Interests:

Madisonian Principles Versus Supreme

Court Practice, 78 VA. L. REV. 1521 (1992) .... 24

Executions in the U.S. 1608–2002, DEATH

PENALTY INFO. CTR.............................................. 9

Governor John Kitzhaber, Executive Order,

November 22, 2011 ............................................. 9

Governor John W. Hickenlooper, Executive

Order D-2013-006, May 22, 2013 ....................... 9

Governor Statement of Inslee, February 11,

2014 ..................................................................... 9

Governor Tom Wolf, Memorandum of

Moratorium, February 13, 2015 ......................... 9

James Kachmar, Comment, Silencing the

Minority: Permitting Nonunanimous Jury

Verdicts in Criminal Trials, 28 Pac. L.J. 273

(1996). ................................................................ 23

Janet C. Hoeffel, Death Beyond a Reasonable

Doubt, 70 Ark. L. Rev. 267 (2017) ...................... 3

Jason A. Cairns and Jonathan J. Koehler,

Cruel And Unusual Punishments: Cruel

and Unusual Punishments: A Comparison

Of Public And Judicial Opinion, 54

Jurimetrics J. 109 (Winter 2014) .................... 24

vii

Jeffrey Abramson, We, the Jury: The Jury

System and the Ideal of Democracy 205

(1994) ................................................................. 19

John Bessler, The Inequality of America's

Death Penalty: A Crossroads for Capital

Punishment at the Intersection of the Eighth

and Fourteenth Amendments, 73 Wash. &

Lee L. Rev. Online 487, 551 (2016) ................... 4

M. Watt Espy & John Ortiz Smykla,

Executions in the United States, 1608–2002:

The ESPY File, DEATH PENALTY INFO. CTR. ...... 9

Rachel La Corte, Washington Senate Passes

Bill to Abolish Death Penalty, The Seattle

Times, February 14, 2018, ................................ 10

Stephen P. Garvey, Aggravation and

Mitgation in Capital Cases: What Do Jurors

Think?, 98 Colum. L. Rev. 1538 (1998) ............ 20

Susan D. Rozelle, The Principled Executioner:

Capital Juries’ Bias and the Benefits of True

Bifurcation, 38 Ariz. St. L.J. 769 (2006) .......... 21

The Federalist No. 1 at 1 (Alexander

Hamilton) (The Avalon Project of Yale Law

School, 2008) ....................................................... 3

Tom R. Tyler, Citizen Discontent with Legal

Procedures: A Social Science Perspective on

Civil Procedure Reform, 45 AM. J. COMP.

L. 871 (1997) .................................................... 24

Valerie P. Hans, John Blume, et al., The

Death Penalty: Should the Judge or the Jury

Decide Who Dies? 12 Journal of Empirical

Legal Studies, 70 (2015) ................................... 15

William J. Bowers, Wanda D. Foglia et. al.,

The Decision Maker Matters: An Empirical

Examination of the Way the Role of the

viii

Judge and the Jury Influence Death Penalty

Decision-Making, 63 Wash & Lee L. Rev.

931 (2006) .......................................................... 21

1

INTERESTS OF AMICUS CURIAE1

The Promise of Justice Initiative (PJI) is a

non-profit law office dedicated to upholding

constitutional integrity. PJI addresses issues

concerning fairness in the administration of capital

punishment.

PJI has filed amicus briefs in this Court, and

a number of state supreme courts, addressing the

emerging national consensus on the excessiveness of

capital punishment and the central role of the jury

in sentencing.

PJI is committed to the promise, that this

Court recently recognized, that “[i]t is the mark of a

maturing legal system that it seeks to understand

and to implement the lessons of history,” and that

our “society can and must move forward by

achieving the thoughtful, rational dialogue at the

foundation of both the jury system and the free

society that sustains our Constitution.” PenaRodriguez v. Colorado, 137 S. Ct. 855, 871 (2017).

Pursuant to this Court’s Rule 37, Amicus states that no

counsel for any party authored this brief in whole or in part,

and no person or entity other than Amicus made a monetary

contribution to the preparation or submission of the brief.

Timely notice was provided more than ten days from the due

date. Petitioner granted consent. Respondent indicated it had

no position.

1

2

SUMMARY OF ARGUMENT

This case sits at the intersection of the Sixth

Amendment’s right to trial by jury and the Eighth

Amendment’s evolving standards of decency.

Matthew Marshall was sentenced to death in

1992 by an elected government official who overrode

the jury that voted to spare his life. The standards of

decency have evolved since 1992.

Today, twenty jurisdictions have removed

capital punishment as an option; another ten have

demonstrated long-term disuse; eighteen have

affirmed that death sentences can come only from a

jury. The standards of decency have evolved and a

new consensus has emerged: no person can be

executed by the state unless the person’s death

sentence was imposed by a jury of his or her peers.

The Eighth Amendment draws its meaning

from the “evolving standards of decency that mark

the progress of a maturing society.” Trop v. Dulles,

356 U.S. 86, 101 (1958). Whatever the standards

may have been in the past, Matthew Marshall’s

execution is cruel and unusual today because

prevailing standards of decency would honor the

jury’s decision to spare his life.

This Court has held that “the Sixth

Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death.” Hurst

v. Fla., 136 S.Ct. 616, 619 (2016). It has now become

clear that the Eighth Amendment does so as well.

3

In the founding conversation about the role of

the Constitution, Alexander Hamilton observed, “it

seems to have been reserved to the people of this

country, by their conduct and example, to decide the

important question whether societies [ …] are really

capable or not of establishing good government from

reflection and choice, or whether they are forever

destined to depend for their political constitutions on

accident and force.” The Federalist No. 1 at 1

(Alexander Hamilton) (The Avalon Project of Yale

Law School, 2008); see also Janet C. Hoeffel, Death

Beyond a Reasonable Doubt, 70 Ark. L. Rev. 267,

(2017) (noting that “the history of the jury trial right

illuminates it as a collective right of the people to

stand in the place of the sovereign to impose

punishment on anyone … [it] is therefore

simultaneously a collective right of the people to

judge and the individual right of the defendant to be

judged by his peers.”).

Amicus believes that this petition offers an

opportunity to answer Hamilton’s essential question

of whether we are capable of enlightened selfgovernance. The American people have reached a

consensus—after much reflection and choice—that

the Eighth Amendment does not allow elected

officials to sentence defendants to death in defiance

of the community’s conscience.

If Mr. Marshall is executed in defiance of, or

even in indifference to, his jury’s reasoned moral

judgment, our capacity for self-governance will prove

weaker than had been hoped. The outlier

execution—breaking a precious link between the

will of the people and the command of the

4

sovereign—reflects a predilection for raw power in

the hands of an executive unchecked by the

governed.

Moreover, amicus suggests that unless this

Court repairs the schism in this doctrine, the Court

will be unable to make an accurate 8th Amendment

analysis concerning the constitutionality of capital

punishment altogether. See Penry v. Lynaugh, 492

U.S. 302, 331 (1989) (noting that in measuring

consensus, in addition to counting states, “[w]e have

also looked to data concerning the actions of

sentencing juries.”) citing Enumnd v. Florida, 458

U.S. 782, 794 (1982); Thompson v. Oklahoma, 487

U.S. 815, 831 (1988). See also John Bessler, The

Inequality of America's Death Penalty: A Crossroads

for Capital Punishment at the Intersection of the

Eighth and Fourteenth Amendments, 73 Wash. &

Lee L. Rev. Online 487, 551 (2016) (“Because the

function of juries is "to maintain a link between

contemporary community values and the penal

system," and because the U.S. Supreme Court looks

to jury verdicts to evaluate the "evolving standards

of decency that mark the progress of a maturing

society," juries that do not reflect an entire

community cannot possibly reflect the conscience of

that community.”). Imposition of a death sentence by

an elected judge is not only outside the bounds of the

standards of decency, it impedes this Court’s effort

to measure whether imposition of the death penalty

itself is in line with contemporary values.

5

ARGUMENT

I.

OBJECTIVE INDICATORS REVEAL

THE PREVAILING STANDARDS OF

DECENCY

As this Court has made clear, “the basic

concept underlying the Eighth Amendment is

nothing less than the dignity of man.” Trop v. Dulles,

356 U.S. 86, 100 (1958). Recognizing that the words

were not “precise” and the scope was “not static”, this

Court has established that the “Amendment must

draw its meaning from the evolving standards of

decency that mark the progress of a maturing

society.” Id. at 101, citing Weems v. United States,

217 U.S. 349 (1909).

In determining whether a sentence violates

the Eighth Amendment the Court considers

“objective indicia of national consensus.” Graham v.

Florida, 560 U.S. 48, 62 (2010). In Roper v.

Simmons, the Court counted 30 states that rejected

the death penalty for juvenile offenders—“12 that

ha[d] rejected it altogether and 18 that maintain[ed]

it but, by express provision or judicial interpretation,

exclude[d] juveniles from its reach.” Roper v.

Simmons, 543 U.S. 551, 564 (2005). See also

Kennedy v. Louisiana, 554 U.S. 407, 422 (2008)

(noting the consistent approach of measuring the

objective indicia of consensus); Atkins v. Virginia,

536 U.S. 304, 316 (2002) (noting 30 states that had

formally barred the death penalty at the time of

Atkins—either generally or specifically for the

intellectually disabled—and that additional states

“continue[d] to authorize executions,” had not

performed an execution in decades, which meant

6

“there [was] little need to pursue legislation barring

the execution of the mentally retarded in those

States.”); Hall v. Florida, 134 S. Ct. 1986 (2014)

(noting long-term disuse coupled with executive

action counted against the permissibility of a

challenged punishment practice placed states “on

the abolitionist side of the ledger”); Graham v.

Florida, 560 U.S. 48 (2010) (finding consensus where

thirteen jurisdictions prohibited life without parole

for non-homicide juvenile offenses, and thirty-seven

jurisdictions that rarely imposed it).

To the extent that the question presented in

this case concerns a process rather than a categorical

bar, the Court has made clear that the State’s

argument “on this score [is] weaker than the one we

rejected in Graham.” Miller v. Alabama, 567 U.S.

460, 482-83 (2012) (noting that the bar is lower

where the decision “does not categorically bar a

penalty for a class of offenders or type of crime—as,

for example, we did in Roper or Graham. Instead, it

mandates only that a sentencer follow a certain

process…before imposing a particular penalty.”).

II.

THE

VAST

MAJORITY

OF

JURISDICTIONS

HAVE

EITHER

REJECTED CAPITAL PUNISHMENT

ENTIRELY OR RESERVED THE DEATH

PENALTY FOR THOSE INSTANCES IN

WHICH

THE

PUNISHMENT

IS

CONFIRMED BY A UNANIMOUS JURY

Review of the “objective indicia of society’s

standards, as expressed in legislative enactments

and state practice with respect to executions,”

7

Kennedy, 554 U.S. at 408, reveals a growing

consensus against the death penalty.

Of the fifty-two jurisdictions in the United

States (fifty states, the District of Columbia, and the

Federal government), the death penalty has

essentially been abandoned or is in disuse in thirty

(30) jurisdictions, and is now restricted to jurysentencing in an additional eighteen (18).

This process reflects the broad evolution of a

civilized society and a transformative movement

that brings us closer to our founding ideals.

A. Thirty-Five Jurisdictions Have Either

Removed the Death Penalty Entirely Or

Exhibit Long Term Disuse.

Thirty-five jurisdictions have either removed

the death penalty as a possible punishment or

exhibit constitutionally significant long-term disuse.

In their dissent in Glossip v. Gross, Justices Breyer

and Ginsburg noted that there were “30 States have

either formally abolished the death penalty or have

not conducted an execution in more than eight

years.” Glossip v. Gross, 135 S. Ct. 2726, 2773

(Breyer, J., Ginsburg, J., dissenting). The numbers

are even more significant today, with twenty

jurisdictions having abolished the death penalty

altogether, and 15 states have no executions since

2010. California (2006); Colorado (1997); Indiana

(2009); Kansas (no executions since the death

penalty was reinstated in 1976); Louisiana (2010);

Montana (2006); Nebraska (1997); Nevada (2006);

New Hampshire (no executions since the death

penalty was reinstated in 1976); North Carolina

8

(2006); Oregon (1997); Pennsylvania (1999);

Tennessee (2009); Utah (2010); Washington

(2010); Wyoming (1992).2

1. Twenty jurisdictions do not have the death

penalty.

Nineteen states3 plus the District of Columbia

do not have the death penalty.4 Seven of these states

have rejected capital punishment in the past ten

years: New Jersey (2007), New York (2007), New

Mexico (2009), Illinois (2011), Connecticut (2012),

Maryland (2013); Delaware (2016).

2 See DPIC, Number of Executions by State and Region Since

1976, online at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976. States in bold were not

listed in the Glossip opinion. Arkansas is the only state listed

in that opinion that since used the death penalty.

3 The following jurisdictions have no death penalty:

Alaska,

Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine,

Maryland, Massachusetts, Michigan, Minnesota, New Jersey,

New Mexico, New York, North Dakota, Rhode Island, Vermont,

West Virginia, and Wisconsin.

4 The death penalty is also prohibited under the constitutions

of Puerto Rico and the Commonwealth for the Northern

Mariana Islands. See P.R. Const. Art. II § 7 (“The death penalty

shall not exist.”); C.N.M.I. Const. Art. I § 4(i) (“Capital

punishment is prohibited.”). In Guam and the U.S. Virgin

Islands, the death penalty is not a possible sentence. See, e.g.,

9 G.C.A. § 16.39(b) (punishment for aggravated murder is life);

14 V.I. C. § 923(a) (providing for life in prison as punishment

for murder).

9

2. Four additional jurisdictions have suspended

the death penalty and exhibit long-term

disuse.

As the Court observed in Hall, states that

have suspended use of the death penalty, coupled

with long-term disuse are similar to those that have

abolished the punishment. Id. at 1997 (placing “on

the abolitionist side of the ledger” “Oregon, which

has suspended the death penalty and executed only

two individuals in the past 40 years”).

Four

jurisdictions—Colorado,5

Oregon,6

Pennsylvania,7 and Washington8—have moratoria

in place, suspending use of the death penalty, and a

long history of disuse consistent with the measure

the Court used in Hall Colorado has executed one

individual since 1967. Oregon has executed two

individuals since 1962—both were volunteers.

Pennsylvania has executed only three individuals

since 1962—each was a volunteer. Washington has

executed five individuals since 1963 but none since

5 See Governor John W. Hickenlooper, Executive Order D-2013-

006,

May

22,

2013

available

at

https://deathpenaltyinfo.org/documents/COexecutiveorder.pdf.

6 See Governor John Kitzhaber, Executive Order, November 22,

2011, available at https://deathpenaltyinfo.org/gov-johnkitzhaber-oregon-declares-moratorium-all-executions.

Governor Kate Brown has continued this moratorium.

See Governor Tom Wolf, Memorandum of Moratorium,

February 13, 2015.

7

8 See Governor Inslee, Statement of February 11, 2014.

10

2010.9 And indeed, repeal legislation supported by

the Attorney General and Governor, passed the

Senate and the House Judiciary Committee in

Washington this year, and missed passing the House

when the shortened session ended.10

3. Six Additional Jurisdictions Exhibited Have

Constitutionally

Significant

Long-Term

Disuse and no Expected Use

At least six states have exhibited long-term

disuse.

i. New Hampshire. Though it retains the

death penalty by statute, New Hampshire has not

performed an execution in 86 years, and has not

sentenced a person to death in ten years.

ii. Wyoming has executed one person in the

last 50 years. Wyoming has no person on death row

9 All data concerning the date of last execution and the number

of executions is drawn from The Espy File, which catalogs all

executions in the United States between 1608 and 2002. M.

Watt Espy & John Ortiz Smykla, Executions in the United

States, 1608–2002: The ESPY File, DEATH PENALTY INFO. CTR.,

available

at

https://www.deathpenaltyinfo.org/documents/ESPYstate.pdf.

Counsel also draws from the searchable database for all

executions between 1976 and the current date. Executions in

the U.S. 1608–2002, DEATH PENALTY INFO. CTR., available at

https://www.deathpenaltyinfo.org/views-executions.

See Rachel La Corte, Washington Senate Passes Bill to

Abolish Death Penalty, The Seattle Times, February 14, 2018,

available

at

https://www.seattletimes.com/seattlenews/politics/ washington-senate-passes-bill-to-abolish-deathpenalty/.

10

11

has not sentenced a person to death in more than ten

years.

iii. Kansas, as the Hall Court noted, “has not

had an execution in almost five decades.” Hall, 134

S. Ct. at 1997, and has only sentenced two people do

death in the last five years.

iv. Idaho has executed two offenders in the

last fifteen years, and has only sentenced one person

to death in the last five years.

v. South Dakota has three people on its row

has only sentenced two people do death in the last

five years.

vi. Kentucky has executed three individuals

since 1968 and has only sentenced one person to

death in the last five years.

Each of these states require jury sentencing.

See Kan. Stat. Ann. § 21-6617 (Lexis 2018); Ky. Rev.

Stat. § 532.025 (Lexis 2018); N.H. Rev. Stat. Ann.

§630:5 (Lexis 2017); S.D. Codified Laws § 23A-27A2 (Lexis 2017); Wyo. Stat. § 6-2-102 (Lexis 2017);

Idaho Code Ann. §19-2515 (Lexis 2017).

4. Five Additional Jurisdictions Have Not Used

the Death Penalty For Ten Years.

Five additional jurisdictions have not executed

anyone for over ten years.

California (2006);

Montana (2006); Nebraska (1997); Nevada (2006);

North Carolina (2006).

12

B.

The Vast Majority Of Jurisdictions Are

Part of A Trend That Requires A Jury To

Decide Whether A Person Lives Or Dies

1. In Twenty-Four Jurisdictions That Authorize

Capital Punishment, A Death Sentence May

Now only be imposed by a Jury.

In addition to the six jurisdictions identified

above, eighteen (18) additional jurisdictions that

authorize the death penalty require a unanimous

jury. 1) Alabama, Ala. Stat. Ann. 13A-5-46; 2)

Arizona, Ariz. Rev. Stat. Ann. §13–751(F) (Cum.

Supp. 2017); 3) Arkansas, Ark. Code Ann. § 5-4-603;

4) California, Cal. Penal Code § 190.3 (Deering); 5)

Federal, 18 U.S.C.S. § 3593; 6) Florida, Fla. Stat.

Ann. § 921.141; 7) Georgia, Ga. Code Ann. § 17-10-2

(Lexis 2017); 8) Louisiana, La. C. Cr. P. Art. 905.1 et

seq.; 9) Mississippi, Miss. Code Ann. § 99-19-101;

10) Nevada, Nev. Rev. Stat. Ann. § 200.030; 11)

North Carolina, N.C. Gen. Stat. § 15A-2000 (Lexis

2017); 12) Ohio, Ohio Rev. Code Ann. § 2929.03; 13)

Oklahoma, 21 Okl. St. § 701.11; 14) South Carolina,

S.C. Code Ann. § 16-3-20; 15) Tennessee, T. C. A. §

39-13-204; 16) Texas, Tex. Crim. Proc. Code Ann. §

37.071; 17) Utah, U.C.A. § 76-3-206; 18) Virginia,

Va. Code Ann. § 19.2-264.4.

2. There is a strong trend towards limiting the

death determination to a jury.

In this case, evidence of consensus is marked

not just by the overwhelming number of states that

have either rejected the death penalty outright or

required unanimous jury sentencing, but the unidirection of the trend. See Roper v. Simmons, 543

13

U.S. 551 (2005) citing Atkins v. Virginia, 536 U.S.

304 (2002) (noting the special relevance of the trend

toward abolition). While this Court in 1995, in

Harris v. Alabama, 513 U.S. 504 (1995) held that the

imposition of a death sentence by an elected judge

did not violate the Eighth Amendment—as it upheld

the execution of intellectually disabled and the

execution of juveniles in 198911—the standards of

decency have evolved, and Justice Stevens’ dissent

is more apt today than it was then. Harris v.

Alabama, 513 U.S. at 526 (“To permit the State to

execute a woman in spite of the community's

considered judgment that she should not die is to

sever the death penalty from its only legitimate

mooring.”).

Indeed, for Eighth Amendment purposes—the

trend is an important component. Florida, Delaware

and Alabama all—in the last three years—rejected

judge sentencing in capital cases. The Delaware

Supreme Court rejected judge sentencing in 2016.

Rauf v. State, 145 A. 3d 430 (Del. 2016).

In 2017, Florida passed a new capital

sentencing provision that requires a unanimous jury

to find beyond a reasonable doubt the existence of an

aggravating circumstance, to weigh aggravators and

mitigators and to determine whether death is the

appropriate punishment. See SB 280 (Fla. 2017)

(amending Section 921.141 of the Florida Statutes to

11 See Penry v. Lynaugh, 492 U.S. 392 (1989) overturned by

Atkins v. Virginia, 536 U.S. 304 (2002); Stanford v. Kentucky,

492 U.S. 361 (1989), overturned by Roper v. Simmons, 543 U.S.

551 (2005).

14

require a unanimous jury verdict); Hurst v. State,

202 So. 3d 40, 53-54 (Fla. 2016) (“We also conclude

that, just as elements of a crime must be found

unanimously by a Florida jury, all these findings

necessary for the jury to essentially convict a

defendant of capital murder—thus allowing

imposition of the death penalty—are also elements

that must be found unanimously by the jury.”).

In 2017, Alabama became the forty-eighth

jurisdiction to eliminate judge sentencing. Alabama

eliminated judicial override and now requires a

jury’s vote of 10-2, prohibiting a judge from imposing

a death sentence without a jury sentence. Ala. Stat.

Ann. 13A-5-46.

C. Less Than A Handful Of Jurisdictions

Permit A Death Sentence To Be Imposed By

A Judge, And The Number Of Judge-Death

Sentences Is Minimal

1. Only four jurisdictions nationwide currently

permit a death sentence to be imposed where a

sentencing jury has not concluded the sentence

is warranted

Currently, only four of fifty-two jurisdictions

nationwide permit a death sentence to be imposed

where a sentencing jury has not unanimously

concluded the sentence is warranted. Those states

are Indiana, Nebraska, Missouri and Montana.

One of these states—Montana—is functionally

abolitionist because no executions in the last ten

years and no death sentences in the last 20. See Hall,

134 S.Ct. at 1997 (counting Oregon as abolitionist

15

because it has suspended the death penalty and

executed only two individuals in fifty years).

Nebraska’s law is an extreme outlier in that it places

the death sentence determination exclusively in the

hands of a three-judge panel, Neb. Rev. Stat. § 292522. It has hardly been used, with only three death

sentences and no executions in the last twelve

years.

Missouri and Indiana authorize a judge to

impose a death sentence but only when a jury has

deadlocked during its penalty deliberations. Mo.

Rev. Stat. § 565.030 (Lexis 2018); Ind. Code Ann. §

35-50-2-9 (Burns, Lexis Advance 2018). It is

significant to note that in terms of jury verdicts,

Missouri has not had a single jury death sentence in

the last four years, and Indiana has only had one.

In Missouri, the last two death sentences were judge

imposed, raising additional constitutional concerns.

Valerie P. Hans, John Blume, et al., The Death

Penalty: Should the Judge or the Jury Decide Who

Dies? 12 Journal of Empirical Legal Studies, 70-99

(2015) (“Moreover, the disproportionate rate at

which judges, compared to juries, impose death

sentences raises serious Eighth Amendment

objections.”).

As in Hall, which addressed procedures

adopted by three states, the scarcity of state laws

permitting capital sentencing without a unanimous

jury penalty verdict is “strong evidence of consensus

that our society does not regard this [procedure] as

proper or humane.” 134 S.Ct. at 1998; see also Coker

v. Georgia, 433 U.S. 584, 596 (1977) (death penalty

for rape of an adult woman held unconstitutional, in

16

part, because the nation’s collective judgment on the

penalty “obviously weigh[ed] very heavily on the side

of rejecting capital punishment as a suitable penalty

for raping an adult woman”).

2. The Number of Individuals Under A JudgeImposed Death Sentence Is Less Than The

Number This Court Found Dispositive in

Graham v. Florida

In Graham v. Florida, this Court found that a

consensus when there were “123 juvenile nonhomicide offenders serving life without parole

sentences. A significant majority of those, 77 in total,

are serving sentences imposed in Florida. … The

other 46 are imprisoned in just 10 States—

California, Delaware, Iowa, Louisiana, Mississippi,

Nebraska, Nevada, Oklahoma, South Carolina, and

Virginia.” Graham, 560 U.S. at 64.

The number of individuals under a judgeimposed death sentence is less than the number this

Court found dispositive in Graham. Here, eight

states have a total of 102 individuals under judgeimposed death sentences. Florida, Missouri, and

Montana each have two individuals under a judgeimposed death sentence. Idaho and Indiana each

have five individuals under a judge imposed

sentence. Nebraska has eleven defendants under a

three-judge death sentence. Alabama (34) and

Arizona (40) both have replaced judge-based

sentencing with jury sentencing. Significantly, the

vast majority of these judge-sentenced condemned

prisoners were sent to death row years if not decades

ago, before the practice was abandoned.

17

Not only is the number of states that permit

judge death-sentencing lower than this Court found

dispositive in Graham, but the number of sentences

at issue is considerably lower. And the majority of

jurisdictions from which these sentences arise have

themselves abandoned the practice. The judgeimposed sentence in this case is an anachronistic

vestigial process from a period from which the

country has evolved.

III. JUDGE-IMPOSED DEATH SENTENCES

FAIL TO REFLECT THE COMMUNITY

CONSENSUS AND ARE NOT SUFFICIENTLY

RELIABLE TO COMPLY WITH THE EIGHTH

AMENDMENT

In addition to evaluating the community

consensus, the Court must also exercise its “’own

judgment … on the question of the acceptability of

the death penalty under the Eighth Amendment.’”

Hall v. Florida, 134 S.Ct. at 2000, quoting Coker,

433 U.S. at 597.

Judicially-imposed death

sentences, in the absence of unanimous jury

agreement, raise concerns. See also Middleton v.

Florida, Nos. 17-6580, 17-6735, 2018 U.S. LEXIS

1511, at *1 (Feb. 26, 2018) (Breyer, J.,) (“In my view,

“the Eighth Amendment requires individual jurors

to make, and to take responsibility for, a decision to

sentence a person to death.” Id., at 619, 122 S. Ct.

2428, 153 L. Ed. 2d 556.”).

18

A. Juries Play An Important Role In Death

Penalty Process.

Juries play an important role in the death

penalty process because they “express the conscience

of the community on the ultimate question of life or

death.” Witherspoon v. Illinois, 391 U.S. 510, 519

(1968). See also Woodward v. Alabama, 134 S. Ct.

405, 407 (2013) (Sotomayor J., dissenting from

denial of certiorari). Whether a defendant is a

future danger, her potential for rehabilitation or

redemption, whether the circumstances of her life

deserve leniency or mercy, depends upon the full

conscience of the entire community. Penry v.

Lynaugh, 492 U.S. 302, 328 (1989) see also

Satterwhite v. Texas, 486 U.S. 249, 261 (1988)

(Marshall,

J.,

concurring)

(“Unlike

the

determination of guilt or innocence, which turns

largely on an evaluation of objective facts, the

question whether death is the appropriate sentence

requires a profoundly moral evaluation of the

defendant’s character and crime.”).

“Capital punishment is an expression of

society’s moral outrage at particularly offensive

conduct,” Gregg v. Georgia, 428 U.S. 153, 183 (1976),

and a sentence of death thus “expresses the

community’s judgment that no lesser sanction will

provide an adequate response to the defendant’s

outrageous affront to humanity.” Harris v. Alabama,

513 U.S. 504, 518 (1995) (Stevens, J., dissenting and

citing Gregg, 428 U.S. at 184). Jurors “possess an

important comparative advantage over judges ...

[because] they are more likely to express the

‘conscience of the community’ on the ultimate

19

question of life or death.” Ring v. Arizona, 536 U.S.

584, 615-16 (2002) (Breyer, J., concurring in

judgment); see also Woodward v. Alabama, 134 S.Ct.

405, 409 (2013) (Sotomayor, J., dissenting from

denial of certiorari) (noting that “[b]y permitting a

single trial judge's view to displace that of a jury

representing a cross-section of the community,

Alabama's sentencing scheme has led to curious and

potentially arbitrary outcomes”).

As this Court has noted, “one of the most

important functions any jury can perform in making

. . . a selection (between life imprisonment and death

for a defendant convicted in a capital case) is to

maintain a link between contemporary community

values and the penal system.” Witherspoon v.

Illinois, 391 U.S. 510, 519 n.15 (1968). This process

requires full engagement and thorough deliberation.

See Jeffrey Abramson, We, the Jury: The Jury

System and the Ideal of Democracy 205 (1994)

(“Abolishing the unanimous verdict would weaken

the conversations through which laypersons educate

one another about their common sense of justice.”).

Accordingly, a judge imposed sentence is less likely

to “reflect a community-based judgement that the

[death] sentence constitutes proper retribution”—as

is required by the Eighth Amendment. Schriro v.

Summerlin, 542 U.S. 348, 360 (2004) (Breyer, J.,

dissenting).

B. Juries Protect Against Unreliable Death

Sentences

In exercising its independent judgment, this

Court, in Atkins v. Virginia, noted that the

20

intellectually disabled were more vulnerable to

wrongful execution. 536 U.S. 304, 321 (2002)

(“Mentally retarded defendants in the aggregate

face a special risk of wrongful execution.”); see also

Hall v. Florida, supra, (noting procedures increased

likelihood of wrongful execution). State death

penalty schemes comport with the Eighth

Amendment only if they provide sufficient

protections against unreliable capital sentences.

Beck v. Alabama, 447 U.S. 625, 637 (1980); Lockett

v. Ohio, 438 U.S. 586, 605 (1978); Gregg v. Georgia,

428 U.S. 153, 195 (1976).

A jury’s guilty verdict does not necessarily

mean each member is certain of the defendant’s

guilt—some residual doubt might remain. As this

Court has explained, “residual doubt . . . refer[s] to

doubts that may have lingered in the minds of the

jurors who were convinced of [the defendant’s] guilt

beyond a reasonable doubt but who were not

absolutely certain of his guilt.” Franklin v. Lynaugh,

487 U.S. 164, 187 (1988). Residual doubt is the most

significant reason jurors vote for life sentences.

Mulvaney & Chamblee, supra, at 108 (citing

Stephen P. Garvey, Aggravation and Mitgation in

Capital Cases: What Do Jurors Think?, 98 Colum. L.

Rev. 1538, 1563 (1998) (explaining data showing

that residual doubt is the most influential factor in

jury votes for life); Susan D. Rozelle, The Principled

Executioner: Capital Juries’ Bias and the Benefits of

True Bifurcation, 38 Ariz. St. L.J. 769, 775 (2006)

21

(describing residual doubt as “the most potent

mitigator in capital case.”).

Given the finality of the death penalty, there

is an important interest in giving a jury the power to

consider questions of residual doubt. Heiney v.

Florida, 469 U.S. 920, 921—22 (1984) (Marshall, J.,

dissenting from denial of certiorari) (“The belief that

[the death penalty] is inappropriate where there are

doubts as to guilt, even if they do not rise to the level

necessary for acquittal, is a feeling that stems from

common sense and fundamental notions of justice.”).

As it turns out, residual doubt is oftentimes

well-founded. Research demonstrates that nonunanimous jury and judicial override cases are more

likely than unanimous jury sentences to produce

death row exonerations. Mulvaney & Chamblee,

supra, at 112. Researchers from the Capital Jury

Project compared deliberation process for states that

had hybrid sentencing statutes like Alabama,

Florida, and Indiana with states that required jury

sentencing, and determined that “the punishment

decisions of jurors in hybrid states were fraught with

less seriousness and conscientiousness owing to

jurors recognition that their punishment decision

was not final.” William J. Bowers, Wanda D. Foglia

et. al., The Decision Maker Matters: An Empirical

Examination of the Way the Role of the Judge and

the Jury Influence Death Penalty Decision-Making,

63 Wash & Lee L. Rev. 931, 953-954 (2006) (“Where

their sentence determination was merely a

recommendation,

they

more

often

denied

responsibility for the defendant's punishment, they

more often failed to understand jury instructions,

22

and they devoted less time and effort to deciding the

sentence..”).

Here, in petitioner’s case, the elected judge

disregarded the jury’s recommendation altogether.

This Court has especial awareness that even Article

III judges, immune from the pressures of electoral

politics, can make mistakes.

C. Juries Are A Fundamental

Against Prejudice

Protection

The jury is to be “a criminal defendant’s

fundamental ‘protection of life and liberty against

race or color prejudice.’” Pena-Rodriguez v.

Colorado, 137 S. Ct. 855, 868 (2017).

Death

penalties imposed in the absence of unanimous jury

agreement risk the marginalization of racial

minorities serving on the jury. In McCleskey v.

Kemp, 481 U.S. 279 (1987), this Court defended racebased outcomes by denoting that a “capital

sentencing jury representative of a criminal

defendant’s community assures a diffused

impartiality.” Id at 310. As the Court explained:

“[i]ndividual jurors bring to their deliberations

"qualities of human nature and varieties of human

experience, the range of which is unknown and

perhaps unknowable. … it is the jury's function to

make the difficult and uniquely human judgments

that defy codification and that "buil[d] discretion,

equity, and flexibility into a legal system.” Id. at 311.

The replacement of diverse juries with judge

sentencing not only does harm to the defendant, but

it undermines the community’s confidence in the

23

process. If minority communities believe “their

voices are being silenced in the jury room,” this

jeopardizes their confidence—and willingness to

participate—in the judicial process. James

Kachmar, Comment, Silencing the Minority:

Permitting Nonunanimous Jury Verdicts in

Criminal Trials, 28 Pac. L.J. 273, 305 (1996).

D. Juries Enhance Confidence In The

Administration Of Capital Punishment

As this Court has made clear, the justice

system suffers the consequences of the risks of

capital punishment: “When the law punishes by

death, it risks its own sudden descent into brutality,

transgressing the constitutional commitment to

decency and restraint.” Kennedy v. Louisiana, 554

U.S. 407, 420 (2008). Indeed, the prohibition against

cruel and unusual punishments is borne from, and

responsive to an evolving moral compass:

Perhaps the central reason that

public standards and opinion should

influence

Eighth

Amendment

jurisprudence is that the legal system

must maintain public confidence in the

rule of law.

Jason A. Cairns and Jonathan J. Koehler, Cruel And

Unusual Punishments: Cruel and Unusual

Punishments: A Comparison Of Public And Judicial

Opinion, 54 Jurimetrics J. 109 (Winter 2014) citing

David L. Faigman, Reconciling Individual Rights

and Government Interests: Madisonian Principles

Versus Supreme Court Practice, 78 VA. L. REV.

1521, 1552 (1992) (noting that "[m]ore than any

24

other amendment, perhaps, construction of the

Eighth Amendment has depended on modern

sensibilities"); Tom R. Tyler, Citizen Discontent with

Legal Procedures: A Social Science Perspective on

Civil Procedure Reform, 45 AM. J. COMP. L. 871,

872 (1997) (“The lack of public confidence in the legal

system is creating a number of problems for lawyers,

judges, and the legal system. The most direct

consequence is difficulty securing the acceptance of

legal decisions."); see also Paul H. Robinson & John

M. Darley, Intuitions of Justice: Implications for

Criminal Law and Justice Policy, 81 S. CAL. L.

REV. 1, 24 (2007) at 31 (“When the law is perceived

as 'doing justice,' assigning liability in proportion to

the moral blameworthiness of the punished

offender, it becomes more effective at controlling

crime.”).

Confidence in the administration of capital

punishment is a core requirement of the criminal

justice system. In Gregg v. Georgia, the Court found

that the death penalty served a purpose of ensuring

confidence in the administration of justice: “When

people begin to believe that organized society is

unwilling or unable to impose upon criminal

offenders the punishment they ‘deserve,’ then there

are sown the seeds of anarchy—of self-help, vigilante

justice, and lynch law.' Gregg v. Georgia, 428 U.S.

153, 225 (1976). But this is no longer clear. Instead,

random judge imposed capital punishment

undermines confidence in the administration of

justice. A death penalty system predicated upon the

decisions of judges not juries, only further

undermines confidence in the justice system

25

generally and the administration

punishment specifically.

IV.

of

capital

EVOLVING STANDARDS OF DECENCY

NOW PROHIBIT JUDGE-BASED DEATH

SENTENCES

The core values underlying the Sixth and

Eighth Amendments, and indeed the Constitution

itself, fuse to reject execution based upon the finding

of a government magistrate.

The right to trial by jury is at the very heart

of our compact for self-governance because of the

legitimacy it confers on the state’s power to punish.

If the friends and the foes of the Constitutional

project at Philadelphia agreed upon nothing else,

there was no doubt that they “concur at least in the

value they set upon the trial by jury; or if there is

any difference between them, it consists in this: the

former regard it as a valuable safeguard to liberty,

the latter represent it as the very palladium of free

government.” The Federalist No. 83, at 521

(Alexander Hamilton).

The interconnection of the right to trial by

jury and the right to be free from cruel and unusual

punishment are fundamental principles of our

constitutional democracy, and their importance

extends beyond the protections they afford to

criminal defendants. These rights converge to

define the outer bounds of government power as the

reasoned will of the people.

The Eighth Amendment’s prohibition against

cruel and unusual punishments is a substantive

26

protection that applies in full force retroactively

because a punishment must comport with standards

of decency at the time it is carried out. In Woodson

v. North Carolina, 428 U.S. 280 (1976), when the

Court banned mandatory death sentences, the

decision applied both respectively and prospectively.

In Lockett v. Ohio, 438 U.S. 586 (1978), when the

Court held that the sentencer must be permitted to

consider mitigating circumstances before imposing

the death penalty, the decision applied prospectively

and retroactively.

Similarly, the protections

provided in Graham v. Florida, 568 U.S. 48 (2010)

(holding life sentences for non-homicide offenses

unconstitutional), and Miller v. Alabama, 567 U.S.

460 (2012) (holding mandatory life sentences for

homicide offenses) have been deemed retroactive.

In Montgomery, Louisiana argued that Miller

v. Alabama had not announced a substantive rule

but rather imposed a different procedure for

determining whether a sentence must be served

without the possibility of parole. The Court rejected

the proposition. Montgomery v. Louisiana, 136 S.

Ct. 718, 734-35 (2016) citing Mackey v. United

States, 401 U.S. 667, at 692, n. 7 (1971) (opinion of

Harlan, J.) (“Some rules may have both procedural

and substantive ramifications, as I have used those

terms here.”). That the standards of decency have

evolved, requiring a full jury not a judge to impose a

death sentence is exactly such a rule—that has

substantive significance and procedural effect.

Regardless of whether the sentence was

unconstitutional when it was imposed, the execution

of that sentence today violates the evolving

standards of decency.

27

CONCLUSION

For the forgoing reasons, amicus respectfully

suggests that the Court grant certiorari in this case

and consider whether evolution in the standards of

decency that mark a civilized society render the

execution of a death sentence imposed by an elected

judge over the vote of a jury constitutes cruel and

unusual punishment.

Respectfully submitted,

G. BEN COHEN*

BLYTHE TAPLIN

CECELIA T. KAPPEL

THE PROMISE OF JUSTICE INITIATIVE

636 BARONNE STREET

NEW ORLEANS, LA. 70115

*COUNSEL OF RECORD