Amicus Curiae Brief — Ohio, Petitioner v. Shawn Ford

No. 19-1191

In the Supreme Court of the United States

STATE OF OHIO, PETITIONER

v.

SHAWN FORD.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

BRIEF FOR THE STATES OF TEXAS, ARIZONA,

ARKANSAS, IDAHO, INDIANA, KANSAS, KENTUCKY,

LOUISIANA, MISSISSIPPI, MISSOURI, NEBRASKA,

OKLAHOMA, SOUTH CAROLINA, AND UTAH AS

AMICI CURIAE IN SUPPORT OF PETITIONER

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney

General

RYAN L. BANGERT

Deputy First Assistant

Attorney General

KYLE D. HAWKINS

Solicitor General

Counsel of Record

ABIGAIL M. FRISCH

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

TA BLE OF C O NTE N TS

Page

Table of authorities .......................................................... II

Interest of amici curiae .................................................... 1

Summary of argument ...................................................... 1

Argument........................................................................... 2

I. Atkins and its progeny purport to outsource

the Eighth Amendment to academics, leaving

States confused ...................................................... 2

A. Atkins declined to define intellectual

disability, and Hall brought discord,

not clarity ......................................................... 2

B. The guidance from this Court sets forth

a judicial role that is both too narrow

and too broad ................................................... 4

C. Moore v. Texas exemplifies the confusion

this Court’s jurisprudence has created .......... 6

II. The States desperately need clear guidance ..... 10

A. State legislatures and courts do not know

what to do ....................................................... 10

B. Federal habeas review of this Court’s

unclear doctrine unjustly impinges on

state sovereignty ........................................... 14

Conclusion ....................................................................... 17

(I)

II

TA BLE OF AU T HOR I TIE S

Page

Cases:

Atkins v. Virginia,

536 U.S. 304 (2002) .............................................. passim

Bean v. State,

448 P.3d 575 (Nev. 2019) ........................................ 13, 14

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004)............................ 7

Carr v. State,

283 So. 3d 18 (Miss. 2019) ...................................... 13, 14

Ex parte Carroll,

No. 1170575, 2019 WL 1499322 (Ala.

Apr. 5, 2019) ............................................................ 13, 14

Commonwealth v. Cox,

204 A.3d 371 (Pa. 2019) ................................................ 14

Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993) ...................................................... 5-6

Fuston v. State,

No. D-2017-773, 2020 WL 1074845

(Okla. Crim. App., Mar. 5, 2020) ................................. 12

Hall v. Florida,

572 U.S. 701 (2014) .............................................. passim

Harrington v. Richter,

562 U.S. 86 (2011) ......................................................... 14

Jackson v. Kelley,

898 F.3d 859 (8th Cir. 2018) .................................. 13, 15

Jackson v. Norris,

No. 5:03-CV-00405 SWW, 2020 WL

1482144 (E.D. Ark. Mar. 23, 2020)........................ 13, 15

III

Cases—Continued:

Page

Johnson v. State,

580 S.W.3d 895 (Mo. 2019) ........................................... 12

Kahler v. Kansas,

140 S. Ct. 1021 (2020) ..................................................... 6

Kansas v. Crane,

534 U.S. 407 (2002) ......................................................... 5

Michigan v. Long,

463 U.S. 1032 (1983) ..................................................... 10

Moore v. Texas,

137 S. Ct. 1039 (2017) .......................................... passim

Moore v. Texas,

139 S. Ct. 666 (2019) ................................................... 6, 9

Ex Parte Moore,

470 S.W.3d 481 (Tex. Crim. App. 2015) .............. 6, 7, 11

Ex parte Moore,

548 S.W.3d 552 (Tex. Crim. App. 2018) ................ 6, 8, 9

Pizzuto v. Yordy,

947 F.3d 510 (9th Cir. 2019) ........................................ 15

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .......................................... 2, 15-16

Smith v. Comm’r, Ala. Dep’t of Corr.,

924 F.3d 1330 (11th Cir. 2019) .................................... 15

Smith v. Sharp,

935 F.3d 1064 (10th Cir. 2019) .................................... 14

State v. Blackwell,

801 S.E.2d 713 (S.C. 2017) ........................................... 13

State v. Thurber,

420 P.3d 389 (Kan. 2018) .............................................. 11

Virginia v. LeBlanc,

137 S. Ct. 1726 (2017) ................................................... 14

IV

Cases—Continued:

Page

Wood v. Texas,

140 S. Ct. 213 (2019) ..................................................... 14

Ex parte Wood,

568 S.W.3d 678 (Tex. Crim. App. 2018) ...................... 14

Woodall v. Commonwealth,

563 S.W.3d 1 (Ky. 2018) ............................................... 11

Wright v. Florida,

139 S. Ct. 2671 (2019) ..................................................... 6

Wright v. State,

256 So. 3d 766 (Fla. 2018) ........................................ 6, 13

Constitutional Provision, Statutes, and Rule:

U.S. Const. amend. VIII.................................... 1, 5, 8, 9, 14

N.C. Gen. Stat. § 15A-2005 ........................................... 10-11

Okla. Stat. tit. 21, § 701.10b(C) ......................................... 12

S.D. Codified Laws § 23A-27A-26 .................................... 11

Tex. Health & Safety Code § 591.003(13) .......................... 7

S. Ct. R. 37.2(a) ..................................................................... 1

Miscellaneous:

Charlie Eastaugh, Taking Medical

Judgment Seriously: Professional

Consensus as a Trojan Horse for

Constitutional Evolution, 53

Willamette L. Rev. 403 (2017) ....................................... 5

Christopher Slobogin, Scientizing

Culpability: The Implications of Hall

v. Florida and the Possibility of A

“Scientific Stare Decisis”, 23 Wm. &

Mary Bill Rts. J. 415 (2014) ........................................ 4-5

V

Miscellaneous—Continued:

Page

Clinton M. Barker, Substantial Guidance

Without Substantive Guides:

Resolving the Requirements of Moore

v. Texas and Hall v. Florida, 70 Vand.

L. Rev. 1027 (2017) ....................................................... 15

David DeMatteo et al., A National Survey

of State Legislation Defining Mental

Retardation: Implications for Policy

and Practice after Atkins, 25 Behav.

Sci. Law 781 (2007) ......................................................... 3

David DeMatteo et al., Forensic Mental

Health Assessments in Death Penalty

Cases (2011) .................................................................... 4

H.B. 173, 151st Gen. Assemb., Reg. Sess.

(N.C. 2015) ............................................................... 10-11

H.B. 1077, 93d Leg., Reg. Sess. (S.D. 2018) .................... 11

Leigh D. Hagan & Thomas J. Guilmette,

The Death Penalty and Intellectual

Disability: Not So Simple, 32 Criminal

Justice 21 (Fall 2017) ................................................. 5, 8

INTE RE ST O F A MIC I CU RI AE

Amici curiae are the States of Texas, Arizona,

Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana,

Mississippi, Missouri, Nebraska, Oklahoma, South

Carolina, and Utah.1 All of the amici States have carried

out capital punishment in the past, and many intend to

do so in the future. All have a strong interest in the

proper application of the Eighth Amendment’s limits on

the States’ powers to implement criminal sentences.

Almost two decades ago, this Court declared that the

Eighth Amendment forbids executing those with intellectual disability. Atkins v. Virginia, 536 U.S. 304, 321

(2002). But the Court declined to define the test for intellectual disability. Amici ask the Court to do so now. State

legislatures and courts need to know. They should no

longer be forced to guess—and then rebuked. See Moore

v. Texas, 137 S. Ct. 1039 (2017).

SU M MA RY O F AR GU MENT

I. The Court announced in Atkins v. Virginia that

the Eighth Amendment does not permit capital punishment of a criminal with an intellectual disability. 536 U.S.

at 321. Having justified that conclusion partly on the consensus of state legislatures, Atkins declined to define intellectual disability, but instead purported to leave that

definition to the States. Id. at 317.

However, with each decision since Atkins, it appears

that the Court has removed that task from the States and

reassigned it to mental-health academics. Those academics’ views on intellectual disability have themselves contorted over the years. States can barely keep up. The

On April 17, 2020, see S. Ct. R. 37.2(a), counsel of record for all

parties received notice of amici’s intention to file this brief.

1

(1)

2

Court should no longer tolerate the apparent outsourcing of this important doctrine of constitutional law.

II. Predictably, state legislatures and courts have

found it difficult to implement the Court’s instructions.

Many legislatures no longer even try to define intellectual disability. Those that do have been vulnerable to invalidation in state and federal court, where the doctrine

is no clearer.

The Court should grant review and explain what the

Constitution requires in defining intellectual disability.

The Court should no longer withhold these “discernible

and manageable standards” from the States. Rucho v.

Common Cause, 139 S. Ct. 2484, 2502 (2019).

ARGU MEN T

I. Atkins and Its Progeny Purport to Outsource the

Eighth Amendment to Academics, Leaving States

Confused.

Atkins left the definition of intellectual disability to

the States. 536 U.S. at 317, 321. But the Court subsequently changed course and seemingly assigned that definitional task to mental-health academics. The result is a

doctrinal area where judges consult not the Constitution

or law, but rather an ever-evolving universe of academic

casebooks and treatises.

A. Atkins declined to define intellectual

disability, and Hall brought discord, not

clarity.

Atkins declared that States may not execute the intellectually disabled. Id. at 321; see also Hall v. Florida,

572 U.S. 701, 705 (2014) (adopting the synonymous term

“intellectual disability”). The Court based that holding in

part on a supposed consensus of state legislation that

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was “not identical, but generally conform[ed]” to the clinical definition of intellectual disability. 536 U.S. at 317 &

n.22. The Court identified two sources of that clinical definition: the manual published by the American Association on Intellectual and Development Disabilities

(AAIDD), and the Diagnostic and Statistical Manual of

Mental Disorders (DSM) published by the American

Psychiatric Association (APA). Id. at 308 n.3; see Hall,

572 U.S. at 727 n.1 (Alito, J., dissenting) (noting renaming of the American Association on Mental Retardation

(AAMR) to the AAIDD). Drawing from those academic

sources, Atkins observed the three-part, high-level definition of intellectual disability, adopted in some state

laws and clinical manuals: (1) “subaverage intellectual

functioning,” corresponding to intelligence quotient (IQ)

test scores under 70; (2) limits in “adaptive functioning,”

corresponding to limits in life skills; and (3) onset of the

foregoing before age 18. 536 U.S. at 308 n.3, 309 n.5.

Taking the Court at its word, States set out to define

intellectual disability. But because this Court “provided

states with virtually no meaningful guidance on how to

define” intellectual disability, the States “adopted widely

varying definitions” in response to Atkins. David

DeMatteo et al., A National Survey of State Legislation

Defining Mental Retardation: Implications for Policy

and Practice after Atkins, 25 Behav. Sci. Law 781, 783,

789 (2007). Indeed, a “large majority of states” that set

out to implement Atkins via legislation “either failed to

mention all three Atkins elements” or “failed to operationally define some or all of the elements in a meaningful manner.” Id. at 789.

Recognizing the confusion Atkins wrought, this

Court next took up the issue of intellectual disability a

decade after Atkins in Hall v. Florida. Hall announced

4

that States do not have “unfettered discretion” in defining intellectual disability for constitutional purposes. 572

U.S. at 719. Instead, they must “consult the medical community’s opinions.” Id. at 710. Florida’s statutory definition failed because it excluded offenders with an IQ score

over 70, without accounting for the standard error of

measurement (SEM) as a clinical diagnosis would. This

meant that even when state law adopted the Atkins

framework, it still might fall short of the constitutional

minimum if it failed to consider sufficient clinical parameters. See id. at 719.

In dissent, Justice Alito predicted practical problems

from defining constitutional law using professional

standards, which are unstable, inconsistent, and not designed for legal use. Id. at 731-33. (Alito, J., dissenting).

As set out below, those predictions came true.

B. The guidance from this Court sets forth a

judicial role that is both too narrow and too

broad.

Hall set the stage for doctrinal confusion by muddling the roles of judges and scientists.

1. The current doctrine makes the judicial role too

narrow by essentially enshrining a mental-health diagnosis as a legal conclusion. After all, post-Hall, a psychiatrist’s word on the subject of mental disability may, to

all intents and purposes, conclusively bind a court.

That makes Atkins and Hall judicial outliers. Atkins

stands alone as “the only Supreme Court decision” creating a categorical exemption from capital punishment

“based on a specific psychiatric diagnosis.” David

DeMatteo et al., Forensic Mental Health Assessments

in Death Penalty Cases 166 (2011). This phenomenon “is

analogous to a Court decision that exempts everyone

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below age twenty-five from the death penalty because

the APA has declared that, given new neuroscientific discoveries, that age is now the threshold for adulthood.”

Christopher Slobogin, Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of A

“Scientific Stare Decisis”, 23 Wm. & Mary Bill Rts. J.

415, 423 (2014) (footnote omitted).

Worse still, enshrining psychiatric evaluations as

constitutional rules empowers special-interest groups

and academics by elevating their judgments above those

of the States. See Leigh D. Hagan & Thomas J. Guilmette, The Death Penalty and Intellectual Disability:

Not So Simple, 32 Criminal Justice 21, 22 (Fall 2017);

Charlie Eastaugh, Taking Medical Judgment Seriously:

Professional Consensus as a Trojan Horse for Constitutional Evolution, 53 Willamette L. Rev. 403, 422 (2017)

(observing a rise in political activism and litigation by

health-science interest groups). Nowhere else does a

psychiatric manual seem to supersede both this Court’s

jurisprudence and the original public meaning of the

Constitution. Indeed, just six months before Atkins was

decided, the Court emphasized the necessity of separating psychiatry from constitutional rules: “[T]he science

of psychiatry . . . informs but does not control ultimate

legal determinations.” Kansas v. Crane, 534 U.S. 407,

413 (2002) (reversing a state supreme court’s overly

strict interpretation of Eighth Amendment limits on the

State’s ability to punish dangerous offenders). The way

to fix this Atkins misadventure is to re-empower the judiciary to interpret the Constitution for itself.

2. At the same time, Atkins and Hall make the judicial role too broad by requiring judges to engage in a clinical diagnosis. Death-penalty cases involving Atkins

claims now require state courts to “deal with definitions

6

of scientific knowledge, scientific method, scientific validity, and peer review—in short, matters far afield from

the expertise of judges.” Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 599 (1993) (Rehnquist, C.J.,

concurring). Courts are painfully aware of the mismatch;

indeed, they could hardly avoid the manuals’ express

caution against use by those not trained in mental-health

sciences. E.g., Wright v. State, 256 So. 3d 766, 776 n.9

(Fla. 2018) (per curiam), cert. denied sub nom. Wright v.

Florida, 139 S. Ct. 2671 (2019).

As the Court recently acknowledged in Kahler v.

Kansas, “[d]efining the precise relationship between

criminal culpability and mental illness” demands “hard

choices among values, in a context replete with uncertainty,” choices “that should be open to revision over

time, as new medical knowledge emerges and as legal

and moral norms evolve.” 140 S. Ct. 1021, 1037 (2020);

accord Moore, 137 S. Ct. at 1058 (Roberts, C.J., dissenting). Those features, the Court concluded, made that

“project” (as they make this one) poorly suited to “constitutional law.” Kahler, 140 S. Ct. at 1037.

C. Moore v. Texas exemplifies the confusion this

Court’s jurisprudence has created.

As Justice Alito predicted, Hall produced doctrinal

confusion that only grows worse among the States. Nothing better illustrates this confusion than the two rounds

of Moore v. Texas. See Ex Parte Moore, 470 S.W.3d 481,

528 (Tex. Crim. App. 2015), vacated sub nom. Moore v.

Texas, 137 S. Ct. 1039 (2017) (hereinafter Moore I); Ex

parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App. 2018),

vacated sub nom. Moore v. Texas, 139 S. Ct. 666 (2019)

(per curiam) (hereinafter Moore II).

7

In Moore I, the Texas Court of Criminal Appeals upheld Bobby Moore’s death sentence and rejected his

claim of intellectual disability. The court relied largely on

its previous decision in Ex parte Briseno, 135 S.W.3d 1,

6 (Tex. Crim. App. 2004), which in turn had set out “to

implement Atkins’s mandate” by “adopt[ing] the definition of intellectual disability stated in the ninth edition of

the AAMR manual, published in 1992, and the similar

definition of intellectual disability contained in section

591.003(13) of the Texas Health and Safety Code.” Moore

I, 470 S.W.3d at 486.

Under the AAMR framework, which Moore I applied,

a prisoner is intellectually disabled and ineligible for execution if he shows by a preponderance of the evidence

that:

(1) he suffers from significantly sub-average general intellectual functioning, generally shown by

an intelligence quotient (IQ) of 70 or less; (2) his

significantly sub-average general intellectual

functioning is accompanied by related and significant limitations in adaptive functioning; and (3)

the onset of the above two characteristics occurred before the age of eighteen.”

Id.

Those factors, of course, match the three Atkins factors beat for beat. Atkins, 536 U.S. at 308 n.3, 309 n.5. So,

in keeping with Atkins’s promise of latitude to States to

define intellectual disability, the Texas Court of Criminal

Appeals’ Atkins-compliant standard, copied from the

clinical manual published by the AAMR, should have

been affirmed easily.

Yet this Court granted certiorari and reversed. It

criticized the Texas Court of Criminal Appeals for three

8

diagnostic errors relevant here. Moore I, 137 S. Ct. at

1053. First, the court “deviated from prevailing clinical

standards” from current editions of clinical manuals. Id.

Second, the court relied too heavily on the offender’s

adaptive strengths, not deficits, and his conduct in

prison, contrary to clinical consensus. Id. at 1050. Third,

the court improperly found no subaverage intellectual

function, despite an SEM range of 69-79, relying on evidence of “other sources of imprecision” in the test administration to “narrow” the SEM range. Id. at 1049.

The Chief Justice, writing in dissent, observed three

ways the Court’s decision muddled the Eighth Amendment’s requirements. First, the Court had articulated a

contentless, immeasurable standard: States retain

“some flexibility” and need not “adhere[]” to clinical

guides, but States cannot “disregard” or “diminish the

force” of clinical consensus—which the Texas court apparently did by “overemphasizing” the offender’s adaptive strengths and “stressing” his conduct in prison. Id.

at 1058-59 (Roberts, C.J., dissenting) (alterations omitted). Second, the Court found clinical consensus where

none existed; experts disagree on how to evaluate adaptive strengths and prison conduct. Id. at 1059-60; see also

Hagan & Guilmette, Not So Simple, supra, at 25-26.

Third, the Court had not “insist[ed] on absolute conformity to medical standards”; therefore, courts may consider

reliability evidence to evaluate multiple IQ scores. Moore

I, 137 S. Ct. at 1060-61 & n.1 (Roberts, C.J., dissenting).

The Chief Justice was correct: Moore I only added

confusion to an already muddled area. Indeed, on remand, the Texas Court of Criminal Appeals tried in good

faith to implement Moore I’s holding. The court adopted

the current manuals. Moore II, 548 S.W.3d at 560. The

court credited the State’s expert, who stated she lacked

9

adequate evidence of adaptive deficits to support an intellectual disability diagnosis. Id. at 562-64. The court

evaluated the claimed adaptive deficits by comparing the

evidence of deficits and corresponding strengths in each

adaptive area. Id. at 563-73. The court relied on standardized tests of adaptive function, not just the offender’s

conduct in prison. Id. at 569.

But that was not enough. In Moore II, the Court

again reversed, finding many of the same errors identified in Moore I. The Court again faulted the Texas Court

of Criminal Appeals for overemphasizing adaptive

strengths and stressing prison conduct. Moore II, 139 S.

Ct. at 670-71.

Justice Alito, writing in dissent, demonstrated that

each error the Court found in the Texas court’s analysis

could be traced to the Court’s own failure to provide clear

guidance. Id. at 673 (Alito, J., dissenting); see also id. at

672 (Roberts, C.J., concurring) (reiterating lack of clear

standards).

Texas’s experience in Moore I and Moore II illustrates two considerations. First, the Court’s Eighth

Amendment jurisprudence is hopelessly muddled.

States’ highest courts do not—and cannot—understand

what exactly they are supposed to analyze. Second, the

problem Atkins created is getting worse, not better. Two

decades after Atkins first forbade the execution of the

intellectually disabled, state lawmakers and judges remain confused, while this Court at every turn seems to

reassign more and more authority to academics and interest groups. There is no basis to continue this untenable regime.

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II. The States Desperately Need Clear Guidance.

The Court should grant review in this case because

state legislatures and courts have no way to know

whether state-law definitions of intellectual disability

comply with the Eighth Amendment. Some legislatures

do not even try to define intellectual disability because

state courts, chastened by the Moore experience, are too

eager to strike down definitions that might be wrong.

The undue abundance of caution persists in federal habeas court, where the guesswork multiplies and exacerbates an already severe intrusion on state sovereignty.

The Court owes a heightened duty to provide clarity

when States feel constrained to interpret their own laws

narrowly to avoid conflict with federal law. Cf. Michigan

v. Long, 463 U.S. 1032, 1044 (1983) (exercising jurisdiction as “the state court ‘felt compelled by what it understood to be federal constitutional considerations to construe its own law in the manner it did’”) (alteration omitted). Now is the time.

A. State legislatures and courts do not know

what to do.

Following Atkins, Hall, and Moore, state legislatures

do not know what to make of their role. See Moore I, 137

S. Ct. at 1058 (Roberts, C.J., dissenting) (critiquing the

absence of discussion of the state legislative consensus

that was “essential” in Atkins and Hall). The patchwork

quilt of muddled decisions raises several questions this

Court should answer.

1. Some state legislatures have met the challenge

head on. For example, in 2015, the North Carolina legislature amended its statute, overtly noting its attempt to

comply with Hall. See H.B. 173, 151st Gen. Assemb.,

Reg. Sess. (N.C. 2015) (codified at N.C. Gen. Stat. § 15A-

11

2005). In contrast, the South Dakota legislature entirely

sidestepped the definition of intellectual disability in a

recent amendment. H.B. 1077, 93d Leg., Reg. Sess. (S.D.

2018) (codified at S.D. Codified Laws § 23A-27A-26).

Similarly, the Texas legislature “has not enacted legislation to implement Atkins’s mandate,” despite the “repeated[]” pleas of the Texas Court of Criminal Appeals.

Moore I, 470 S.W.3d at 486, 487.

State legislatures have good reason to hesitate. State

courts have struck down legislative definitions of intellectual disability for remarkably thin reasons. One example arises from Kentucky, where the state supreme court

struck down the Commonwealth’s intellectual-disability

statute based on the “tone” of U.S. Supreme Court and

Ninth Circuit decisions. Woodall v. Commonwealth, 563

S.W.3d 1, 6 (Ky. 2018). The court further concluded that

the statute was “simply outdated” and “d[id] not go far

enough” to accommodate ever-changing “prevailing

medical standards,” which “should always take precedence in a court’s determination.” Id. at 6-7. This Court,

in other words, has put state courts to the task of asking

not what the Constitution requires, but what clinical

guides say now and might say in the future.

Another example comes from Kansas. In State v.

Thurber, the Kansas Supreme Court struck down a statutory definition that required a finding that the offender

could not understand the criminality of his conduct or

conform it to the law. 420 P.3d 389, 450 (Kan. 2018). That

court reasoned that since clinicians do not consider a

criminal’s ability to understand or conform to the law

when diagnosing intellectual disability, courts cannot do

so either. Id.

To be sure, not every state court errs on the side of

striking down legislation. The Oklahoma Court of

12

Criminal Appeals, for example, upheld a statutory definition of intellectual disability that “in no event” includes

offenders who have “received an [IQ score] of seventysix (76) or above.” Okla. Stat. tit. 21, § 701.10b(C); see

Fuston v. State, No. D-2017-773, 2020 WL 1074845, at *7

(Okla. Crim. App., Mar. 5, 2020). The offender had received an IQ score of 81, among other lower scores, and

argued that Moore required the court to consider the totality of the circumstances. Fuston, 2020 WL 1074845, at

*7. But the court found no requirement in Hall or Moore

that “a person with an IQ score of 81 . . . whose SEM

yields a range of 76 to 86” is entitled to Atkins protection.

Id. That was correct: Hall “reached no holding” as to

“multiple scores,” and Moore I provided no basis to

“question the approach of States that would not treat a

single IQ score as dispositive evidence where the prisoner presented additional higher scores.” Moore I, 137

S. Ct. at 1060 n.1 (Roberts, C.J., dissenting).

But even state courts that manage to avoid clashing

with the legislative branch often find conflict and confusion amongst themselves. For example, a concurring Oklahoma judge warned lower courts to “use great caution”

and encouraged them to shift the burden of proof to the

State and apply two layers of SEM ranges. Fuston, 2020

WL 1074845, at *26 n.4 (Lewis, J., concurring).

A similarly wary judge on the Missouri Supreme

Court thought the court would have been safer to assess

intellectual disability and vacate the sentence, whether

or not that issue had been properly raised, considering

this Court’s “almost unprecedented step of reversing the

Texas courts a second time in Moore II.” Johnson v.

State, 580 S.W.3d 895, 915 (Mo. 2019) (en banc) (Stith, J.,

dissenting), cert. petition pending, No. 19-7153 (Jan. 3,

2020).

13

Likewise, a concurring judge of the Florida Supreme

Court wrote separately to discourage lower courts from

assessing prison conduct at all. Wright, 256 So. 3d at 78081 (Pariente, J., concurring).

2. The above cases confirm that it is time for the

Court to answer at least three questions. First, can

courts consider adaptive strengths and prison conduct?

Conservatively interpreting Moore, perhaps not. See supra pp. 8-9. The Eighth Circuit apparently takes that approach. Jackson v. Norris, No. 5:03-CV-00405 SWW,

2020 WL 1482144, at *5 n.4, *16 (E.D. Ark. Mar. 23, 2020)

(applying Jackson v. Kelley, 898 F.3d 859, 869 (8th Cir.

2018)); see also infra p. 15. The judges of the Florida Supreme Court reached different conclusions. Wright, 256

So. 3d at 776 & n.8. So did the judges of the South Carolina Supreme Court. State v. Blackwell, 801 S.E.2d 713,

721 & n.11 (S.C. 2017). The Alabama Supreme Court

found consideration of adaptive strengths and prison

conduct to be proper in resolving conflicting expert testimony. Ex parte Carroll, No. 1170575, 2019 WL

1499322, at *10-12 (Ala. Apr. 5, 2019), cert. petition pending, No. 19-7456 (Jan. 28, 2020).

Second, can courts ever find that the offender has

failed to prove subaverage intellectual functioning if the

record contains any IQ score with a range below 70?

Florida says yes. Wright, 256 So. 3d at 772. Nevada says

no. Bean v. State, 448 P.3d 575, at *2 (Nev. 2019) (unpublished). Mississippi says it doesn’t matter; the only

necessary finding is whether the scores fell within the

SEM. Carr v. State, 283 So. 3d 18, 26 (Miss. 2019), cert.

petition pending, No. 19-7699 (Feb. 19, 2020).

Third, can a court discredit unreliable test scores

based on evidence that the test was not properly taken

or administered without impermissibly “narrow[ing] the

14

test-specific standard-error range”? Moore I, 137 S. Ct.

at 1049. Mississippi says yes. Carr, 283 So. 3d at 27. Nevada says yes. Bean, 448 P.3d at *3. Alabama says probably. Ex parte Carroll, 2019 WL 1499322, at *14. Some

Texas judges doubt it. Ex parte Wood, 568 S.W.3d 678,

685 (Tex. Crim. App. 2018) (Newell, J., concurring), cert.

denied sub nom. Wood v. Texas, 140 S. Ct. 213 (2019).

Pennsylvania says no. Commonwealth v. Cox, 204 A.3d

371, 384-88 (Pa. 2019).

This Court should not put off weighing in any longer.

B. Federal habeas review of this Court’s unclear

doctrine

unjustly impinges on

state

sovereignty.

Already, federal habeas review of state convictions

“intrudes on state sovereignty to a degree matched by

few exercises of federal judicial authority.” Harrington

v. Richter, 562 U.S. 86, 103 (2011). The intrusion is “unnecessar[y]” when federal habeas courts grant relief

based on rules the Court has not clearly announced. Virginia v. LeBlanc, 137 S. Ct. 1726, 1729 (2017) (per curiam) (reversing the Fourth Circuit for deducing an

Eighth Amendment rule that was “[p]erhaps the logical

next step” from what the Court said, but “perhaps not,”

considering other courts’ contrary conclusions).

The Court’s unclear standard on intellectual disability has rendered federal habeas review more intrusive

and less justified than it otherwise would be. For instance, the Tenth Circuit granted habeas relief based on

this Court’s “admonitions” and “disfavor[]” of evidence

the State had offered to rebut the offender’s evidence of

adaptive deficits. Smith v. Sharp, 935 F.3d 1064, 1086

(10th Cir. 2019).

15

More disconcerting, the Eighth Circuit holds courts

to a standard that introduces statistical inaccuracy, lacks

logical coherence, and relaxes the “petitioner’s burden of

proof.” Jackson, 2020 WL 1482144, at *5 n.4, *16 (citing

Jackson, 898 F.3d at 869). The Eighth Circuit instructs

courts to apply a five-point SEM to any IQ score, whatever a clinician would apply. Id. at *14-16. And, perplexingly, courts must analyze whether an offender’s “adaptive functioning deficits . . . indicate that he is not intellectually disabled.” Jackson, 898 F.3d at 869 (emphasis

added). This leaves no choice but to grant habeas relief,

because, “[a]s one would expect, [a] record of adaptive

deficits (i.e., academic and behavioral problems experienced in childhood) provide no indication that [the offender] is not intellectually disabled.” Jackson, 2020 WL

1482144, at *16.

Short of granting habeas relief, federal habeas courts

compound the confusion by articulating different standards. For example, States in the Ninth Circuit are “required to adhere closely to the” “prevailing clinical definitions,” Pizzuto v. Yordy, 947 F.3d 510, 526-27 (9th Cir.

2019) (per curiam), whereas States in the Eleventh Circuit may not “disregard current clinical and medical

standards,” Smith v. Comm’r, Ala. Dep’t of Corr., 924

F.3d 1330, 1338 (11th Cir. 2019); see also Clinton M.

Barker, Substantial Guidance Without Substantive

Guides: Resolving the Requirements of Moore v. Texas

and Hall v. Florida, 70 Vand. L. Rev. 1027, 1048-52 (2017)

(observing divergent federal appellate court definitions).

Such a severe intrusion on state sovereignty deserves

a better foundation.

***

Just last year, in Rucho, this Court declined to adopt

a proposed rule of constitutional law because it lacked

16

“legal standards discernible in the Constitution” and

thus was not subject to “clear, manageable” judicial administration. 139 S. Ct. at 2500. That is, the Constitution

does not require rules that lack “discernible and manageable standards for deciding whether there has been a violation.” Id. at 2501. Surely, when this Court decided Atkins and its progeny, it believed that such “discernible

and manageable standards” exist to determine intellectual disability. Now is the time to announce them.

17

CONC LU SION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney

General

RYAN L. BANGERT

Deputy First Assistant

Attorney General

MAY 2020

KYLE D. HAWKINS

Solicitor General

Counsel of Record

ABIGAIL M. FRISCH

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Kyle.Hawkins@oag.texas.gov

(512) 936-1700

18

Counsel for Additional Amici States:

MARK BRNOVICH

Attorney General

of Arizona

LYNN FITCH

Attorney General

of Mississippi

LESLIE RUTLEDGE

Attorney General

of Arkansas

ERIC SCHMITT

Attorney General

of Missouri

LAWRENCE G. WASDEN

Attorney General

of Idaho

DOUGLAS J. PETERSON

Attorney General

of Nebraska

CURTIS T. HILL, JR.

Attorney General

of Indiana

MIKE HUNTER

Attorney General

of Oklahoma

DEREK SCHMIDT

Attorney General

of Kansas

ALAN WILSON

Attorney General

of South Carolina

DANIEL CAMERON

Attorney General

of Kentucky

SEAN D. REYES

Attorney General

of Utah

JEFF LANDRY

Attorney General

of Louisiana