Amicus Curiae Brief — Kentucky, Petitioner v. Larry Lamont White

No. 20-240

In the

Supreme Court of the United States

COMMONWEALTH OF KENTUCKY,

Petitioner,

v.

LARRY LAMONT WHITE,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Kentucky

BRIEF FOR AMICI CURIAE THE STATES OF

ARIZONA, ARKANSAS, IDAHO, INDIANA,

KANSAS, LOUISIANA, MISSISSIPPI,

NEBRASKA, OHIO, SOUTH DAKOTA, AND

TEXAS IN SUPPORT OF PETITIONER

MARK BRNOVICH

Attorney General

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

BRUNN W. ROYSDEN III

Solicitor General

LACEY STOVER GARD

Deputy Solicitor General

Counsel of Record

RUSTY D. CRANDELL

Deputy Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Lacey.Gard@azag.gov

Counsel for Amici Curiae

(Additional counsel listed at end of brief)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................1

BACKGROUND ..........................................................2

ARGUMENT ...............................................................4

I. Delay In Proceeding To Finality And

Execution In Capital Cases Is

Already Too Common, Which Harms

Family Members And Other Victims..............4

A. Delay Compounds Harm To

Victims ........................................................4

B. Delay

Undermines

States’

Interests In Enforcing The Law ................6

II. Atkins Does Not Prohibit States

From Crafting Rules Regarding The

Waiver Of Intellectual Disability

Claims ..............................................................8

III. The Court Should Grant Review To

Resolve The Split And Help Alleviate

The

Harm

From

Delay

By

Confirming That Atkins Claims Are

Waivable ........................................................ 10

CONCLUSION .......................................................... 11

ii

TABLE OF AUTHORITIES

CASES

Atkins v. Virginia,

536 U.S. 304 (2002) ............................................ 8, 9

Bobby v. Bies,

556 U.S. 825 (2009) ................................................9

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) .......................................... 11

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................ 5, 6

City of Phoenix v. Geyler,

144 Ariz. 323 (1985) ...............................................7

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................9

Hall v. Florida,

572 U.S. 701 (2014) ................................................2

Herrera v. Collins,

506 U.S. 390 (1993) ................................................6

Moore v. Texas,

137 S. Ct. 1039 (2017) .................................... 2, 3, 8

State v. Granados,

172 Ariz. 405 (Ct. App. 1991) ................................7

State v. Towery,

204 Ariz. 386 (2003) ...............................................7

State v. Waldrip,

111 Ariz. 516 (1975) ...............................................7

CONSTITUTIONAL PROVISIONS

Ariz. Const. art. II, § 2.1 ..................................... 4, 6, 7

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Idaho Const. art. I, § 22 ..............................................6

Ind. Const. art. 1, § 13 .................................................6

Kan. Const. art. 15, § 15 .............................................6

La. Const. Ann. art. 1, § 25 .........................................6

Miss. Const. art. 3, § 26A ............................................6

Neb. Const. art. I, § 28 ................................................6

Ohio Const. art. I, § 10a ..............................................6

Tex. Const. art. I, § 30 .................................................6

STATUTES

18 U.S.C. § 3771 ..........................................................4

Ariz. Rev. Stat. § 13-753 .............................................9

Ark. Code Ann. § 16-90-1101 et seq. ...........................6

S.D. Codified Laws § 23A-28C-1 .................................6

OTHER AUTHORITIES

Dan S. Levy, Balancing the Scales of

Justice,

89 Judicature 289 (2006) .......................................5

Dr. David B. Muhlhausen, Testimony Before

the Senate Judiciary Committee (June

27, 2007) .................................................................8

Dr. Joel H. Hammer, The Effect of Offender

Punishment on Crime Victim’s Recovery

and Perceived Fairness (Equity) and

Process Control,

University Microfilms International 87,

Ann Arbor, MI (1989).............................................5

iv

Hashem Dezhbakhsh, Paul H. Rubin &

Joanna M. Shepherd, Does Capital

Punishment Have a Deterrent Effect?

New Evidence from Postmoratorium

Panel Data,

5 Am. L. & Econ. Rev. 344 (2003)..........................8

Heidi M. Zinzow, et al., Examining

Posttraumatic Stress Symptoms in a

National Sample of Homicide Survivors:

Prevalence and Comparison to Other

Violence Victims,

24 J. Trauma Stress 743 (December

2011) .......................................................................5

Ulrich Orth, Secondary Victimization of

Crime Victims by Criminal Proceedings,

15 Soc. Just. Res. 313 (2002) .................................4

1

INTEREST OF AMICI CURIAE 1

Amici curiae, the States of Arizona, Arkansas,

Idaho, Indiana, Kansas, Louisiana, Mississippi,

Nebraska, Ohio, South Dakota, and Texas file this

brief in support of Petitioner in furtherance of the

interest each Amici State has in advancing the

interests of crime victims, defending the ability of

States to enforce constitutional restrictions, and

ensuring the timely administration of justice in state

criminal cases.

SUMMARY OF ARGUMENT

This case is important—beyond the split amongst

state high courts on the question present—because it

represents part of a broader problem: interminable

delay in proceeding to finality and execution in

capital cases.

Capital cases typically feature the most repugnant

crimes, and are perhaps the most deserving of the

timely administration of justice, especially from the

perspective of family members and others who are

protected by state victims’ rights measures. Yet, as

is too common, the conviction here came six years

ago (in 2014). And the Kentucky Supreme Court’s

decision will only further the delay here by sending

Larry Lamont White—who has been convicted

already of rape and murder in this case—back to the

trial court for evidentiary proceedings that he does

not want, which will undoubtedly produce additional

appeals.

The Court should grant review here to resolve the

split in authority over whether a capital defendant

1 Counsel for Amici Curiae provided timely notice of the intent

to file this brief to all parties’ counsel of record.

2

can waive a claim of intellectual disability under the

Atkins line of cases; hold that such claims can be

waived; and in doing so help alleviate the lingering

harm that comes from the lengthy delays that

hamper the effective execution of capital sentences.

BACKGROUND

In 2014, Defendant Larry Lamont White was

convicted and sentenced to death for the 1983 rape

and murder of Pamela Armstrong. App. 16–17.

DNA recovered from Ms. Armstrong’s underwear

matched White’s DNA “with certainty—one in 160

trillion people.” Id. at 43.

At the trial court, defense counsel requested an

evidentiary hearing to determine whether White

suffered from an intellectual disability based on

White having scored 76 on an IQ test. Id. at 100.

The trial court denied the motion and the Kentucky

Supreme Court unanimously affirmed. Id. at 67, 82–

83, 85. The Kentucky Supreme Court reasoned that

White’s IQ score of 76 was “higher than the 70-point

minimum threshold” from Hall v. Florida, 572 U.S.

701 (2014). App. 60. In the alternative, the court

found that “there [was] ample evidence of [White’s]

mental acumen.” Id. at 61. For example, White

“often advocated for himself through numerous pro

se motions,” one of which was specifically highlighted

for its persuasiveness. Id.

After defense counsel filed a petition for a writ of

certiorari, this Court vacated the judgment and

remanded for further consideration in light of Moore

v. Texas, 137 S. Ct. 1039 (2017), which concerned the

execution of intellectually disabled defendants. It

was only after this case was remanded back that

White became aware that defense counsel had filed

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the certiorari petition raising an Atkins issue. White

wrote to the then-Attorney General of Kentucky: “I

was never apprised of existent litigation and had not

until here lately received any copies of this litigation

about me being retarded, this news was very

astonishing to me.” Id. at 107. White also stated his

agreement with the Commonwealth’s position that

he is not intellectually disabled. Id. at 108. Instead

of wasting time on “this ‘retarded foolishness,’”

White expressed the desire to move on to the postconviction stage of the case so he could have “a fair

opportunity” to “prove [his] innocence.” Id. White

also filed several pro se motions making absolutely

clear that he did not wish to pursue an Atkins claim.

Pet. at 7–8.

Despite the repeated requests of White to waive

any Atkins claim, the Kentucky Supreme Court held

that it could not “allow him to pro se waive this issue,

as that would impose the death penalty on a

potentially intellectually disabled defendant—

something the Commonwealth is without power to

do.” App. 6–7. The court thought itself powerless to

grant White’s request because of the statement in

Moore that “‘the Constitution ‘restrict[s] … the

State’s power to take the life of’ any intellectually

disabled individual.’” Id. at 5–6 (quoting Moore, 137

S. Ct. at 1048).

4

ARGUMENT

I.

Delay In Proceeding To Finality And

Execution In Capital Cases Is Already Too

Common, Which Harms Family Members

And Other Victims

Forcing a capital defendant to be subject to an

evidentiary hearing about mental disability when

the defendant clearly does not wish to pursue this

claim is just another delay mechanism that

undermines the important interests in proceeding to

finality and execution in capital cases.

A.

Delay Compounds Harm To Victims

In the federal Crime Victims’ Rights Act, 18 U.S.C.

§ 3771, Congress codified the right of crime victims

to “proceedings free from unreasonable delay” and to

“be treated … with respect for [their] dignity.” And,

recognizing that surviving family members are also

victims of the murderer where the victim is deceased,

Congress made sure that “the crime victim’s estate

[or] family members … may assume the crime

victim’s rights.” 18 U.S.C. § 3771(e). The rights of

victims have also been recognized in states across

the country. See, e.g., Ariz. Const. art. II, § 2.1

(victims’ bill of rights).

These rights are assaulted each time proceedings

are delayed or the finality of judgments is

jeopardized, leading to secondary victimization that

exacerbates the wounds of the initial criminal act.

Ulrich Orth, Secondary Victimization of Crime

Victims by Criminal Proceedings, 15 Soc. Just. Res.

313, 321 (2002) (secondary victimization can be more

harmful than the crime itself).

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Repeated appeals and delays that jeopardize the

finality and completion of the sentence in a death

penalty case can have devastating effects on the

surviving family members, who must relive the

murder of their loved one with each new proceeding.

Dan S. Levy, Balancing the Scales of Justice, 89

Judicature 289, 290 (2006). The murder of a loved

one can cause post-traumatic stress disorder (PTSD)

for the survivor at up to twice the rate for that of

victims of other types of trauma. Heidi M. Zinzow, et

al., Examining Posttraumatic Stress Symptoms in a

National Sample of Homicide Survivors: Prevalence

and Comparison to Other Violence Victims, 24 J.

Trauma Stress 743, 744 (December 2011). Healing

can be prevented and PTSD or other pain aggravated

by a victim’s experience with the criminal justice

system, especially where delays and other difficulties

in achieving finality give victims the perception that

the offender is going unpunished. Dr. Joel H.

Hammer, The Effect of Offender Punishment on

Crime Victim’s Recovery and Perceived Fairness

(Equity) and Process Control, University Microfilms

International 87, Ann Arbor, MI (1989) (victim

recovery generally improves with the perception of

punishment of the offender).

The harm inflicted on victims through delay in the

administration of justice has been repeatedly

recognized in the law. “Only with an assurance of

real finality can the State execute its moral

judgment and can victims of crime move forward

knowing the moral judgment will be carried out.”

Calderon v. Thompson, 523 U.S. 538, 539 (1998).

“Unsettling these expectations inflicts a profound

injury to the ‘powerful and legitimate interest in

punishing the guilty,’ … an interest shared by the

6

State and crime victims alike.” Id. (quoting Herrera

v. Collins, 506 U.S. 390, 421 (1993) (O’Connor, J.,

concurring)). The lengthening of these proceedings

and delay in the final implementation of the sentence

creates recognizable pain in victims and postpones

their own ability to heal their wounds—closure for

victims being inextricably linked with finality in

sentencing and judgment. Id. at 556.

B.

Delay Undermines States’ Interests In

Enforcing The Law

States have interests in the timely finalization and

execution of sentences in capital cases, which fosters

respect for the rule of law and helps protect the wellbeing of citizens who have been victimized by

criminal offenders. The vast majority of States

(including all Amici States) have adopted a crime

victims’ rights act or amendment to their respective

constitutions, underscoring their commitment to and

important interest in ensuring victims’ rights to

timeliness in the completion of proceedings,

including enforcement of the sentence. See, e.g.,

Ariz. Const. art. II, § 2.1; Ark. Code Ann. § 16-901101 et seq.; Idaho Const. art. I, § 22; Ind. Const. art.

1, § 13; Kan. Const. art. 15, § 15; La. Const. Ann.

art. 1, § 25; Miss. Const. art. 3, § 26A; Neb. Const.

art. I, § 28; Ohio Const. art. I, § 10a; S.D. Codified

Laws § 23A-28C-1; Tex. Const. art. I, § 30. These

protections add to the independent, compelling

interest States have in finalizing and implementing

judgments as sovereign entities. This interest in

finality is put in jeopardy through cases, such as the

underlying case, in which delays and never-ending

appeals are allowed to thwart the finalization and

implementation of lawful judgments.

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States have expressed their commitment to

bringing about timely justice to victims through their

constitutions, laws, and court decisions.

For

example, “Arizona courts are especially concerned

with the finality of criminal cases because the

Arizona Constitution requires courts to protect the

rights of victims of crime by ensuring a ‘prompt and

final conclusion of the case after the conviction and

sentence.’” State v. Towery, 204 Ariz. 386, 391, ¶ 14

(2003) (quoting Ariz. Const. art. II, § 2.1(A)(10)).

Further, the Arizona Constitution requires that “all

rules governing criminal procedure … in all criminal

proceedings protect victims’ rights” and the

legislature is empowered to ensure this goal is met.

Id. at § 2.1(A)(11). These provisions are mandatory.

See id. at § 32. And Arizona courts recognize the

State’s independent interest in finality. See, e.g.,

City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985)

(“there is a ‘compelling interest in the finality of

judgments’ which should not lightly be disregarded”)

(citation omitted); State v. Granados, 172 Ariz. 405,

407 (Ct. App. 1991) (“finality, as a general matter, is

desirable in criminal prosecutions”); State v.

Waldrip, 111 Ariz. 516, 518 (1975) (the “function of

courts is to put an end to litigation”).

Delays in finalizing and implementing capital

punishment also undermine the interest of States

and their citizens in seeing that the deterrence

function of the criminal law is given effect. The

compelling interest each State has in carrying out its

own criminal sentences is undermined when

interminable delays prevent the finalization and

execution of capital sentences.

This leads to

disrespect for the rule of law, which may in turn lead

to an increase in violence in response to the

8

diminishing potential for fitting punishment.

“Numerous studies published over the past few

years, using panel data sets and sophisticated social

science techniques, are demonstrating that the death

penalty saves lives,” including an Emory University

study finding “that each execution, on average,

results in 18 fewer murders.”

Dr. David B.

Muhlhausen, Testimony Before the Senate Judiciary

Committee (June 27, 2007); Hashem Dezhbakhsh,

Paul H. Rubin & Joanna M. Shepherd, Does Capital

Punishment Have a Deterrent Effect? New Evidence

from Postmoratorium Panel Data, 5 Am. L. & Econ.

Rev. 344–376 (2003).

But this deterrent effect

requires that would-be murderers believe their

execution will actually be carried out.

II. Atkins Does Not Prohibit States From

Crafting Rules Regarding The Waiver Of

Intellectual Disability Claims

The decision below would also prevent States from

developing appropriate ways to enforce Atkins and

its progeny.

In Moore v. Texas, the Court

reiterated—while setting forth the background from

Atkins v. Virginia—that States lack the power “‘to

take the life’ of’ any intellectually disabled

individual.” 137 S. Ct. 1039, 1048 (2017) (quoting

Atkins v. Virginia, 536 U.S. 304, 321 (2002)). From

the italicized word “any,” the court below gleaned

that Atkins and its progeny impose “an absolute bar”

that prohibits capital defendants from waiving a

claim of intellectual disability. App. 5.

But Atkins and its progeny held no such thing. To

the contrary, Atkins left “‘to the State[s] the task of

developing appropriate ways to enforce the

constitutional restriction upon [their] execution of

9

sentences.’”

536 U.S. at 317 (quoting Ford v.

Wainwright, 477 U.S. 399, 416–17 (1986)). And later

cases have affirmed that Atkins “did not provide

definitive procedural or substantive guides for

determining when a person who claims mental

retardation ‘will be so impaired as to fall within

[Atkins’ compass].’” Bobby v. Bies, 556 U.S. 825, 831

(2009) (quoting Atkins, 536 U.S. at 317).

States are equal to the task of developing

procedural and substantive guides to enforce the

constitutional restriction from Atkins. For example,

Arizona has chosen to “appoint a prescreening

psychological expert in order to determine the

defendant’s intelligence quotient” whenever the

State files a notice of intent to seek the death penalty

“unless the defendant objects.” Ariz. Rev. Stat. § 13753(B). Assuming that the defendant does not

“waive[] the right to a pretrial determination of

status,” Arizona also provides a number of additional

safeguards, which are both time consuming and

costly, ensuring that there is a fair opportunity to

assess whether the defendant has an intellectual

disability. See id. § 13-753 (setting forth procedures

for appointing additional experts and conducting an

evidentiary hearing). In the end, however, Arizona

has placed the option to waive these safeguards and

the burden to prove an intellectual disability upon

the capital defendant. Id. § 13-753(B), (G).

The Court should reject the Kentucky Supreme

Court’s “absolute,” one-size-fits-all approach.

It

threatens the ability of States to craft “appropriate

ways to enforce” Atkins. It strips capital defendants

of the flexibility to try their case as they see best.

And, because it forces courts to conduct intellectual

disability hearings over the objection of capital

10

defendants, it effectively shifts the burden to States

to disprove an intellectual disability.

Nothing in Atkins or its progeny require such a

result. As set forth in the Petition (at 11–17), the

Court has long recognized that constitutional rights

can be waived, including under the Eighth

Amendment.

The constitution does not require

States to go on a wild-goose chase to hunt down

whether “any” intellectual disability might exist

when a capital defendant insists that he is not

disabled and waives his rights under Atkins. Such

an approach is not only unwise, it would waste

limited resources and compound delays already

present in capital cases.

III. The Court Should Grant Review To Resolve

The Split And Help Alleviate The Harm

From Delay By Confirming That Atkins

Claims Are Waivable

As set forth above, the interminable delay in

proceeding to finality and execution in capital cases

harms victims and undermines States’ interests in

enforcing the law. Further, as set forth in the

Petition (at 17–25), State courts of last resort are

divided on whether capital defendants can waive

Atkins claims. The Court should grant the Petition,

resolve the split in the courts below, and allow the

death penalty process to proceed in cases where

capital defendants have waived their rights under

Atkins.

*

*

*

The decision below undermines States’ interest in

finality and promotes litigation aimed at ensuring

that lawful capital sentences are never actually

11

carried out. The people of the State in which a crime

occurs, the victims of that crime, “and others like

them deserve better” than the “excessive” “delays

that now typically occur between the time an

offender is sentenced to death and his execution.”

Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019)

(quotes omitted). A State’s interests in enforcing its

own sentences, protecting its citizens, and

maintaining confidence in the integrity of the legal

system support the position of the Commonwealth of

Kentucky.

CONCLUSION

The Court should grant the Petition and reverse

the decision below.

September 28, 2020

Respectfully submitted.

MARK BRNOVICH

Attorney General

BRUNN W. ROYSDEN III

Solicitor General

LACEY STOVER GARD

Deputy Solicitor General

Counsel of Record

RUSTY D. CRANDELL

Deputy Solicitor General

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-5025

Lacey.Gard@azag.gov

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

Counsel for Amici Curiae

(Additional counsel listed at end of brief)

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LESLIE RUTLEDGE

Arkansas Attorney General

LAWRENCE G. WASDEN

Idaho Attorney General

CURTIS T. HILL, JR.

Indiana Attorney General

DEREK SCHMIDT

Kansas Attorney General

JEFF LANDRY

Louisiana Attorney General

LYNN FITCH

Mississippi Attorney General

DOUGLAS J. PETERSON

Nebraska Attorney General

DAVE YOST

Ohio Attorney General

JASON R. RAVNSBORG

South Dakota Attorney General

KEN PAXTON

Texas Attorney General