Amicus Curiae Brief — Alfred Bourgeois, Petitioner v. T. J. Watson, Warden, et al.

No. 20-6500

IN THE

Supreme Court of the United States

ALFRED BOURGEOIS,

Petitioner,

v.

T.J. WATSON, WARDEN, AND

UNITED STATES OF AMERICA,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE CONSTITUTION

PROJECT AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Parker Rider-Longmaid

Amelia A. DeGory

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

Meir Feder

Counsel of Record

JONES DAY

250 Vesey Street

New York, NY 10281

212-326-3939

mfeder@jonesday.com

Counsel for Amicus Curiae

i

QUESTION PRESENTED

The Federal Death Penalty Act of 1994, 18 U.S.C.

§§ 3591–3598, provides that “[a] sentence of death

shall not be carried out upon a person who is mentally

retarded,” id. § 3596(c). That language appears in a

provision entitled “Implementation of a sentence of

death,” alongside parallel provisions prohibiting execution of pregnant women and prisoners who are mentally incompetent, id. § 3596(b), (c), and following provisions triggered “[w]hen the sentence is to be implemented,” id. § 3596(a). The Act elsewhere contains

separate provisions for “Imposition of a sentence of

death,” id. § 3594, following a “Special hearing to determine whether a sentence of death is justified,” id.

§ 3593, based on “Mitigating and aggravating factors

to be considered in determining whether a sentence of

death is justified,” id. § 3592, all to be followed by “Review of a sentence of death,” id. § 3595.

The question presented is: Whether the Federal

Death Penalty Act prohibits the government from executing a federal prisoner who is intellectually disabled under legal and diagnostic standards applicable

when the sentence is to be carried out.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

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

INTEREST OF AMICUS CURIAE............................ 1

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

ARGUMENT .............................................................. 6

A.

B.

The FDPA’s plain text forbids

executing a person who “is”

intellectually disabled under

standards applicable at the time

the execution will be “carried out” ............. 6

1.

Congress’ present-tense

construction must be

presumed to be deliberate .................. 7

2.

Fundamental interpretive

principles confirm that

Congress deliberately used

present-tense language ...................... 9

The FDPA’s structure and context

confirm that Congress intended a

present-tense assessment of

intellectual disability under

current standards ..................................... 12

1.

Congress distinguished between

imposition and implementation

of a death sentence throughout

the FDPA .......................................... 12

iii

TABLE OF CONTENTS

(continued)

Page

2.

The backdrop of this Court’s

decision in Penry v. Lynaugh

confirms that Congress intended

a present-tense prohibition .............. 14

3.

The FDPA’s design and purpose

reflect Congress’ desire to

ensure that capital punishment

would be administered fairly ........... 17

C.

By amending the FDPA after Atkins

v. Virginia, Congress indicated that

it expected intellectual disability to

be assessed under current standards ...... 19

D.

Constitutional avoidance principles

likewise support construing the

FDPA according to its plain language ..... 23

CONCLUSION ......................................................... 25

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Atkins v. Virginia,

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

Barrett v. United States,

423 U.S. 212 (1976) ............................................ 7, 8

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) ........................................ 5, 6

Carr v. United States,

560 U.S. 438 (2010) ...................................... passim

Comcast Corp. v. Nat’l Ass’n of African

Am.–Owned Media,

140 S. Ct. 1009 (2020) .......................................... 10

Culbertson v. Berryhill,

139 S. Ct. 517 (2019) ............................................ 12

Ford v. Wainwright,

477 U.S. 399 (1986) .................................... 3, 10, 11

Forest Grove Sch. Dist. v. T.A.,

557 U.S. 230 (2009) ........................................ 19, 22

Furman v. Georgia,

408 U.S. 238 (1972) (per curiam) ........................ 14

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ........................................ 7, 8, 12

Hall v. Florida,

572 U.S. 701 (2014) ................................ 4, 6, 21, 24

v

TABLE OF AUTHORITIES

(continued)

Page(s)

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988) .............................................. 12

Kansas v. Crane,

534 U.S. 407 (2002) .............................................. 20

Lagos v. United States,

138 S. Ct. 1684 (2018) ............................................ 9

Lorillard v. Pons,

434 U.S. 575 (1978) .............................................. 19

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) ............................ 11, 16, 19, 22

Moore v. Texas,

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

Moore v. Texas,

139 S. Ct. 666 (2019) (per curiam) ........................ 1

Nijhawan v. Holder,

557 U.S. 29 (2009) ................................................ 11

Penry v. Lynaugh,

492 U.S. 302 (1989) ...................................... passim

Porter v. Nussle,

534 U.S. 516 (2002) ........................................ 13, 15

Russello v. United States,

464 U.S. 16 (1983) ................................................ 17

United States v. Texas,

507 U.S. 529 (1993) ........................................ 10, 11

United States v. Wilson,

503 U.S. 329 (1992) ................................................ 7

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

18 U.S.C. § 3591 .................................................. 17, 22

18 U.S.C. § 3592 ................................................ passim

18 U.S.C. § 3593 ........................................ 4, 14, 16, 22

18 U.S.C. § 3594 .................................................... 4, 13

18 U.S.C. § 3595 ........................................................ 14

18 U.S.C. § 3596 ................................................ passim

Adam Walsh Child Protection and

Safety Act of 2006, Pub. L. No. 109248, 120 Stat. 587 (2006) ..................................... 22

Anti–Drug Abuse Act of 1988, Pub. L.

No. 100-690, 102 Stat. 4390,

21 U.S.C. § 848 ................................... 11, 16, 17, 18

Criminal Law Technical Amendments

Act of 2002, Pub. L. No. 107-273,

116 Stat. 1758 (2002) ........................................... 22

Dictionary Act, 1 U.S.C. § 1 .................................... 2, 7

OTHER AUTHORITIES

134 Cong. Rec. 22993 (1988) ..................................... 18

American Psychiatric Association,

Diagnostic and Statistical Manual of

Mental Disorders (DSM-5) ..................................... 2

H.R. Rep. No. 103-467 (1994).................................... 17

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Innocence and the Death Penalty:

Hearing Before the S. Comm. on the

Judiciary on S. 221, 103d Cong.

(1993) (No. 103-468) ....................................... 18, 19

Oxford English Dictionary ........................................ 13

W. Blackstone, Commentaries .................................. 10

1

INTEREST OF AMICUS CURIAE

The Constitution Project at the Project On Government Oversight (TCP) seeks consensus-based solutions to contemporary constitutional issues, including

by working to ensure due process in the criminal justice system. TCP is deeply concerned with the preservation of our fundamental constitutional guarantees

and ensuring that those guarantees are respected and

enforced by all three branches of government, particularly when the government seeks to impose an irrevocable punishment like the death penalty. Accordingly,

TCP regularly files amicus briefs in this Court and

other courts in cases, like this one, that implicate its

nonpartisan positions on constitutional or statutory

issues, see, e.g., Moore v. Texas, 137 S. Ct. 1039 (2017);

Moore v. Texas, 139 S. Ct. 666 (2019) (per curiam), in

order to better apprise courts of the importance and

broad consequences of those issues. TCP takes no position on the abolition or maintenance of the death

penalty. Rather, it focuses on forging solutions aimed

at achieving the common objectives of justice for victims of crimes and protecting the constitutional rights

of the accused.1

1 Pursuant to Rule 37.2(a), counsel of record received timely

notice of intent to file this brief, and consented in writing. No

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

no person or entity other than amicus curiae or its counsel made

a monetary contribution to the preparation or submission of this

brief.

2

SUMMARY OF ARGUMENT

The Federal Death Penalty Act of 1994 (FDPA)

commands that “[a] sentence of death shall not be carried out upon a person who is mentally retarded.” 18

U.S.C. § 3596(c). That present-tense language—focusing on the time of execution rather than the time the

sentence is imposed—means what it says: The federal

government may not execute a prisoner if he is intellectually disabled when the sentence will be “carried

out.” That determination requires assessing the prisoner under current legal and diagnostic standards.

Id.2

The Seventh Circuit here disagreed, stating that

the question “is not whether [Petitioner] is intellectually disabled,” because he “was able to litigate his intellectual-disability claim” in 2011. Pet. App. PA015.

The court of appeals is mistaken. The court’s reading

not only is contrary to § 3596(c)’s plain language, but

disregards familiar interpretive principles, statutory

structure and context, and legislative history that fortify the statute’s plain meaning. It also creates serious

constitutional concerns.

Start with the text. The very first provision of the

U.S. Code, like this Court’s decisions, “ascribes significance to verb tense.” Carr v. United States, 560 U.S.

438, 448 (2010) (discussing the Dictionary Act, 1

U.S.C. § 1). That is especially true where, as here,

Congress put other provisions of the statute in the

past tense. See id. at 450. Here, although Congress

2 Except when quoting, this brief uses the term “intellectually disabled” rather than the term “mentally retarded,” consistent with the American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders (DSM-5).

3

used past-tense constructions to refer to numerous

past determinations, see, e.g., 18 U.S.C. § 3592(a)(2)

(“defendant was under unusual and substantial duress” (emphasis added)); id. § 3592(b)(3) (“defendant

knowingly created a grave risk of death to another

person” (emphasis added)), it prohibited “carry[ing]

out” the execution of “a person who is mentally retarded,” id. § 3596(c) (emphases added). That plain

language prohibits executing a person who is—at the

time the execution is carried out—intellectually disabled.

Consider too the other prohibitions on execution

that accompany the intellectual-disability prohibition.

Section 3596 also provides that “[a] sentence of death

shall not be carried out upon a woman while she is

pregnant,” id. § 3596(b), or “upon a person who, as a

result of mental disability, lacks the mental capacity

to understand the death penalty and why it was imposed on that person,” id. § 3596(c) (emphasis added).

Pregnancy can be evaluated only in the present; likewise, mental competence must be assessed in the present under both this Court’s decisions and the common law, even if the prisoner was competent when the

death sentence was imposed. Ford v. Wainwright, 477

U.S. 399, 406–08 (1986). By placing those similarly

worded provisions side-by-side, Congress indicated

that it expected present-tense assessments at the time

of execution for all three conditions.

The FDPA’s structure confirms that Congress

drafted the statute with care. The intellectual-disability prohibition appears in a section entitled “Implementation of a sentence of death”—a section triggered

“[w]hen the sentence is to be implemented.” 18 U.S.C.

4

§ 3596(a) (emphasis added). But “Imposition of a sentence of death” is the subject of another provision, id.

§ 3594 (emphasis added), to be resolved at a “Special

hearing to determine whether a sentence of death is

justified,” id. § 3593, based on “Mitigating and aggravating factors to be considered in determining

whether a sentence of death is justified,” id. § 3592.

Congress’ placement of the intellectual-disability

assessment at implementation was no accident. Just

a few years before enactment of the FDPA, this Court

held in Penry v. Lynaugh, 492 U.S. 302, 324–30 (1989),

that the Eighth Amendment required consideration of

intellectual disability as mitigating evidence weighing

against imposition of the death penalty. But Congress

charted a different course in the FDPA. First, Congress went beyond Penry to prohibit altogether the execution of “a person who is mentally retarded,” 18

U.S.C. § 3596(c), rather than placing intellectual disability among the mitigating factors in § 3592. Second,

Congress placed that prohibition at implementation,

thus requiring the determination to be made at the

time the execution is to “be carried out.” Id. § 3596(c).

Congress’ choice to require a time-of-execution assessment matters. Although the underlying impairments are permanent, the intellectual-disability inquiry is not. Beginning with Atkins v. Virginia, 536

U.S. 304, 321 (2002), this Court’s decisions make clear

that the applicable standards continue to advance as

this Court provides guidance on the law and clinical

authorities continue to refine the relevant diagnostic

standards. See Moore v. Texas, 137 S. Ct. 1039, 1049–

53 (2017); Hall v. Florida, 572 U.S. 701, 710–14, 721–

23 (2014). By amending the FDPA after Atkins without modifying the intellectual-disability prohibition,

5

Congress indicated that it incorporated this Court’s

understanding of intellectual disability and the

FDPA’s time-of-execution prohibition.

In Atkins, the Court held that executing persons

with intellectual disability violates the Eighth

Amendment. The Court noted that the FDPA “prohibited any individual with mental retardation from being sentenced to death or executed.” Atkins, 536 U.S.

at 314 n.10 (emphasis added). It further relied on the

national consensus in the States, with definitions that

“generally conform to the clinical definitions” set out

by the American Association on Mental Retardation

and the American Psychiatric Association. Id. at 308

n.3, 317 n.22. Having established the importance of

focusing on standards “that currently prevail,” as informed by ever-advancing clinical guidelines, the

Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction.” Id. at 311, 317.

Congress amended the FDPA twice after Atkins.

Infra pp. 22–23. But it never revisited its prohibition

on “carr[ying] out” a death sentence on “a person who

is mentally retarded.” 18 U.S.C. § 3596(c). That is because Congress had already made its choice about how

to enforce the constitutional restriction. As “the words

on the page” provide, Bostock v. Clayton County, 140

S. Ct. 1731, 1738 (2020), the federal government may

not execute someone who is intellectually disabled under standards prevailing at implementation, when the

execution will “be carried out.”

Constitutional avoidance principles dispel any lingering doubt that § 3596(c) means what it says. The

Eighth Amendment prohibits the execution of “any intellectually disabled individual.” Moore, 137 S. Ct. at

6

1048 (quoting Atkins, 536 U.S. at 321). And it requires

attention to “[t]he medical community’s current

standards.” Id. at 1053. Failing to assess a prisoner’s

intellectual-disability claim under standards current

at the time of execution raises serious constitutional

questions by “creat[ing] an unacceptable risk that persons with intellectual disability will be executed.” Id.

at 1051 (quoting Hall, 572 U.S. at 704). That is true

even if the prisoner has previously litigated an intellectual-disability claim, so long as he can show that

the result may be different under current standards,

informed by this Court’s precedents and “the work of

medical experts.” Hall, 572 U.S. at 710. Reading

§ 3596(c) according to its plain language avoids those

constitutional difficulties.

ARGUMENT

A. The FDPA’s plain text forbids executing

a person who “is” intellectually disabled

under standards applicable at the time

the execution will be “carried out.”

Courts interpret statutes “in accord with the ordinary public meaning of [their] terms,” because “only

the words on the page constitute the law adopted by

Congress and approved by the President.” Bostock,

140 S. Ct. at 1738. Here, the relevant words provide

that “[a] sentence of death shall not be carried out

upon a person who is mentally retarded.” 18 U.S.C.

§ 3596(c). That language prohibits the federal government from executing someone who “is” intellectually

disabled under standards applicable at the time of execution, as traditional interpretive canons confirm.

7

1. Congress’ present-tense construction

must be presumed to be deliberate.

1. a. Congress’ use of the present-tense phrase

“is mentally retarded” reflects its intent to preclude

execution of individuals who are intellectually disabled as assessed at the time the sentence will be implemented. Verb tense matters. This Court “frequently look[s] to Congress’ choice of verb tense to ascertain a statute’s temporal reach,” as the Dictionary

Act requires. Carr, 560 U.S. at 448 (citing United

States v. Wilson, 503 U.S. 329, 333 (1992); Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 57 (1987); Barrett v. United States, 423 U.S.

212, 216 (1976)). The Dictionary Act provides that

“words used in the present tense include the future as

well as the present,” 1 U.S.C. § 1—but “the present

tense generally does not include the past,” Carr, 560

U.S. at 448. That principle tracks “the typical understanding of the present tense in either normal discourse or statutory construction.” Id. at 448 n.5.

In Carr, for example, the Court held that a sexoffender registration statute applying to anyone who

“is required to register” applied to only post-enactment conduct. Id. at 441–42. “Had Congress intended

preenactment conduct to satisfy” that provision, the

Court reasoned, “it presumably would have varied the

verb tenses.” Id. at 450. Indeed, “numerous federal

statutes use” past-tense constructions “when coverage

of preenactment events is intended.” Id.

Those plain-meaning principles apply here too.

Had Congress intended to permit the execution of a

defendant who litigated an intellectual-disability

claim under outdated standards prevailing before implementation of the death sentence, even though he is

8

intellectually disabled under current standards, it

could have said so.

b. The Seventh Circuit here disagreed, asking

“what other word would Congress have chosen” other

than “the word ‘is’” given that “[i]ntellectual disability

is a permanent condition.” Pet. App. PA014. But “omnitemporality” “is not the typical understanding of the

present tense.” Carr, 560 U.S. at 448 n.5. Congress

would have used another formulation—in another

section of the statute, see infra pp. 12–14, and “varied

the verb tenses,” Carr, 560 U.S. at 450—if it had not

intended an intellectual-disability assessment under

current standards. For example, Congress could have

provided that a person “shall not be eligible for a death

sentence if a court has determined that he is mentally

retarded.” Such a present-perfect formulation would

focus on a defendant’s opportunity to raise intellectual

disability earlier rather than—as Congress provided—on whether he “is” intellectually disabled as

assessed at the time the execution will “be carried out.”

18 U.S.C. § 3596(c). Timing matters, because the

standards for assessing intellectual disability are constantly advancing. Infra pp. 23–24.

Such care with language is not too much to expect.

Congress “knows how to avoid … prospective implication by using language that explicitly targets” the past.

Gwaltney, 484 U.S. at 57; see Barrett, 423 U.S. at 216

(present-perfect tense “denot[ed] an act that has been

completed”). Indeed, Congress used the present-perfect tense elsewhere in the FDPA, when addressing

facts adjudicated in the past. See, e.g., 18 U.S.C.

§ 3592(b) (sentencer may consider “any other aggravating factor for which notice has been given” (emphasis added)); id. § 3592(c)(2) (aggravating factor if “the

9

defendant has previously been convicted of” a felony

(emphasis added)). And, perhaps most significantly,

alongside the prohibition on executing someone “who

is mentally retarded,” Congress prohibited executing

someone who “lacks the mental capacity to understand the death penalty and why it was imposed on

that person.” Id. § 3596(c) (emphasis added). When

Congress wanted the decisionmaker to look to the past,

it said so.

So too when Congress wanted to require a present-tense determination, as here. Congress provided

that a sentence of death “shall not be carried out upon

a woman while she is pregnant”; “upon a person who,

as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was

imposed”; or “upon a person who is mentally retarded.”

18 U.S.C. § 3596(b), (c) (emphases added). The Seventh Circuit nonetheless wrongly concluded, as it had

in Carr, “that Congress’ use of present-tense verbs …

is not very revealing.” 560 U.S. at 451.

2. Fundamental interpretive principles

confirm that Congress deliberately

used present-tense language.

“[S]tatutory context” likewise “strongly supports a

forward-looking construction.” Id. at 449.

First, words are known by the company they keep

(noscitur a sociis). E.g., Lagos v. United States, 138

S. Ct. 1684, 1688–89 (2018). Here, Congress placed

the present-tense intellectual-disability prohibition

alongside two other conditions that preclude execution at the time of implementation of the sentence:

pregnancy and lack of capacity. 18 U.S.C. § 3596(b),

10

(c). Pregnancy must be assessed at the time of implementation, rather than imposition, of the sentence.

The same is true for mental incompetence. As Ford illustrates, a defendant competent at sentencing may

deteriorate and become incompetent before execution.

477 U.S. at 401–02; infra pp. 10–11. Combined with

the statute’s present-tense language, noscitur a sociis

provides “powerful evidence,” Carr, 560 U.S. at 450,

that the intellectual-disability prohibition is forwardlooking. Congress intended the FDPA’s ban on executing intellectually disabled prisoners to be treated the

same as the statute’s parallel present-tense provisions

for pregnant and incompetent prisoners.

Second, § 3596’s historical roots confirm that Congress deliberately used present-tense language. Section 3596 incorporates the common-law and Eighth

Amendment rule that mental incompetence at the

time of execution spares a prisoner from death. Placing intellectual disability alongside mental incompetence suggests the same present-tense construction.3

Courts “presume that Congress legislates against

the backdrop of the common law,” Comcast Corp. v.

Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct.

1009, 1016 (2020), expecting common-law principles

to apply absent contrary provisions, United States v.

Texas, 507 U.S. 529, 534 (1993). Here, the commonlaw rule “stayed” execution of mentally incompetent

prisoners, even those sentenced to death while competent and “becom[ing] of nonsane memory” only “after

judgment.” Ford, 477 U.S. at 406–07 (quoting 4 W.

Blackstone, Commentaries *24–25).

3 The common law also prohibited the execution of pregnant

women. See, e.g., 4 W. Blackstone, Commentaries *395.

11

That was the situation in Ford, where this Court

held that “[t]he Eighth Amendment prohibits the

State from inflicting the penalty of death upon a prisoner who is insane.” Id. at 408, 410 (emphasis added).

Although Ford was not “incompetent at the time of his

offense, at trial, or at [capital] sentencing,” his behavior subsequently changed and “became more serious

over time.” Id. at 401–02. Ford requires an assessment of “the prisoner’s ability to comprehend the nature of the [death] penalty” at the time of execution.

Id. at 417. The question centers not on imposition of

the death penalty, but rather on the government’s

“ability to execute its sentences.” Id. at 409 (emphasis

added); see infra pp. 12–14.

This Court presumes that Congress is aware of

both the common law and “relevant judicial precedent.” Merck & Co. v. Reynolds, 559 U.S. 633, 648

(2010). And like the common law, Ford was on the

books when Congress enacted the Anti–Drug Abuse

Act of 1988 (ADAA), Pub. L. No. 100-690, § 700(l), 102

Stat. 4390, 21 U.S.C. § 848(l), containing the intellectual-disability prohibition on which the FDPA prohibition at issue here was modeled, see infra pp. 18–19.

Congress’ placement of a prohibition on executing individuals who are intellectually disabled alongside

common-law prohibitions requiring time-of-execution

assessments is strong evidence that Congress “expect[ed] that the common law [timing] principle

[would] apply” across the board. Texas, 507 U.S. at 534

(cleaned up).

*

*

*

“Where, as here, Congress uses similar statutory

language in two adjoining provisions, it normally intends similar interpretations.” Nijhawan v. Holder,

12

557 U.S. 29, 39 (2009). Congress, by using presenttense verbs for all three conditions prohibiting the

government from “carr[ying] out” the sentence, intended for all three conditions to be assessed under

standards applicable at the time of execution. Thus,

“the only way to avoid an incongruity among neighboring” provisions, Carr, 560 U.S. at 449 (quoting

Gwaltney, 484 U.S. at 59), is to construe the prohibitions on “carr[ying] out” the execution of individuals

who are pregnant, mentally incompetent, or intellectually disabled as all requiring a present-tense determination. Congress’ “undeviating use of the present

tense” is a “striking indic[ator]” of the statute’s “prospective orientation.” Id.

B. The FDPA’s structure and context

confirm that Congress intended a

present-tense assessment of intellectual

disability under current standards.

The FDPA’s structure and context confirm what

the law’s plain text commands: Congress expected a

present-tense intellectual-disability assessment under the governing standards applicable when the execution would be “carried out.” 18 U.S.C. § 3596(c).

1. Congress

distinguished

between

imposition and implementation of a

death sentence throughout the FDPA.

“[T]he structure of the [FDPA] and its other provisions” support reading § 3596(c)’s prohibition on executing individuals who are intellectually disabled to

require a present-tense assessment. Culbertson v.

Berryhill, 139 S. Ct. 517, 522 (2019) (quotation marks

omitted); see K Mart Corp. v. Cartier, Inc., 486 U.S.

281, 291 (1988) (“language and design of the statute

13

as a whole”). The FDPA’s design shows that Congress

intended the intellectual-disability determination to

be made under standards prevailing at implementation, rather than imposition, of a death sentence.

Congress devoted separate provisions to imposition and implementation of a death sentence, and

ranked intellectual disability as a reason not to implement a sentence. “Impose” means “to put or subject …

to a penalty,” Impose, Oxford English Dictionary,4 and

“Imposition of a sentence of death” is the title and subject of a separate provision, 18 U.S.C. § 3594. “Implement,” in contrast, means “to complete, perform, carry

into effect …; to fulfil,” Implement, Oxford English

Dictionary,5 and Congress devoted § 3596, the provision at issue, to “Implementation of a sentence of

death.” See generally Porter v. Nussle, 534 U.S. 516,

527–28 (2002) (“[T]he title of a statute and the heading of a section are tools available for the resolution of

a doubt about the meaning of a statute.”).

That choice is significant, because it tells prosecutors, defendants, and judges that the intellectual-disability question can be conclusively resolved against a

defendant only under the legal and clinical standards

applicable when the execution is to be completed, performed, or, in Congress’ words, “carried out.” “Carry

out,” of course, means “to conduct duly to completion

or conclusion.” Carry out, Oxford English Dictionary.6

4 https://oed.com/view/Entry/92591.

5 https://oed.com/view/Entry/92452.

6 https://oed.com/view/Entry/28252.

14

“[T]he imposition and carrying out of the death penalty,” Furman v. Georgia, 408 U.S. 238, 239 (1972) (per

curiam), are two different things.

The distinction between imposition and implementation pervades the FDPA. Not only does § 3596

contain prohibitions that must be assessed at implementation, supra pp. 9–12, but other provisions with

no mention of intellectual disability are designed to

guide the imposition stage: “Mitigating and aggravating factors to be considered in determining whether a

sentence of death is justified,” id. § 3592, at a “Special

hearing to determine whether a sentence of death is

justified,” id. § 3593, with appellate “Review of a sentence of death” to follow, id. § 3595. That scheme reflects Congress’ expectation that, on a sufficient showing, intellectual disability would be assessed at implementation, regardless of what transpired earlier.

What’s more, § 3596 itself distinguishes between

imposition and implementation. “[T]he sentence is to

be implemented” only after “exhaustion of the procedures for appeal of the judgment of conviction and for

review of the sentence.” Id. § 3596(a). And “[a] sentence of death shall not be carried out upon a person

who, as a result of mental disability, lacks the mental

capacity to understand the death penalty and why it

was imposed on that person.” Id. § 3596(c) (emphasis

added); supra pp. 9–12.

2. The backdrop of this Court’s decision

in Penry v. Lynaugh confirms that

Congress intended a present-tense

prohibition.

Congress’ decision to define the prohibition on

“carr[ying] out” a death sentence on someone “who is”

15

intellectually disabled at implementation is particularly significant given this Court’s decision just several years earlier in Penry v. Lynaugh, 492 U.S. 302

(1989). The Court in Penry viewed mental retardation

not as a bar on execution but as a non-dispositive factor relevant to whether a death sentence should be imposed. Section 3596 diverged from that approach, confirming that Congress expected an assessment at implementation. Cf. Porter, 534 U.S. at 528 (“Congress

expects its statutes to be read in conformity with th[e]

Court’s precedents”).

In Penry, this Court rejected the argument, later

accepted in Atkins, that “the Eighth Amendment prohibits the execution of mentally retarded persons.”

492 U.S. at 329; see infra pp. 19–21. The Court thus

declined to “impose a new obligation on the States and

the Federal Government” regarding their “power to

impose” the death penalty.” Penry, 492 U.S. at 329–30

(emphasis added). Instead, the Court held that the

Eighth Amendment required an instruction at sentencing that the jury could consider and “give mitigating effect to Penry’s evidence of mental retardation”

“as relevant evidence that might cause it to decline to

impose the death sentence.” Id. at 324, 327 (emphasis

in original). The Court added that “mental retardation”

was potentially “a two-edged sword: it may diminish

[Penry’s] blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future.” Id. at 324. In short, the Court’s

reasoning and holding located “mental retardation” as

a key consideration in the decision whether to impose

a death sentence, not whether to implement one.

Several years later in the FDPA, however, Congress charted a different course both substantively

16

and procedurally. Not only did Congress provide that

an intellectually disabled individual cannot be executed, but it did so at the implementation stage,

providing that “[a] sentence of death shall not be carried out upon a person who is mentally retarded.” 18

U.S.C. § 3596(c). That choice is particularly telling

given Congress’ detailed provisions for consideration

of enumerated mitigating and aggravating factors in

18 U.S.C. §§ 3592 and 3593—where intellectual disability would be found had Congress followed the

Court’s approach in Penry.

Congress’ choice was not accidental. For one thing,

Congress is presumed to be “aware of relevant judicial

precedent.” Merck, 559 U.S. at 648. For another, Congress made other legislative choices showing that it

deliberately placed the intellectual-disability prohibition at implementation.

When Congress enacted the ADAA (containing the

precursor to the FDPA’s intellectual-disability prohibition) the year before Penry, it provided in a single

section, “Imposition of sentence,” that “[a] sentence of

death shall not be carried out upon a person who is

under 18 years of age at the time the crime was committed” or “upon a person who is mentally retarded”

or incompetent. 21 U.S.C. § 848(l) (1994). Despite the

section’s title, those provisions were parallel presenttense prohibitions on the implementation of sentences

already imposed. See id. (“Upon the recommendation

that the sentence of death be imposed, the court shall

sentence the defendant to death.”).

When Congress modeled the FDPA on the ADAA

just a few years after Penry, it retained the language

that “[a] sentence of death shall not be carried out

upon a person who is mentally retarded.” 21 U.S.C.

17

§ 848(l) (1994); 18 U.S.C. § 3596(c) (2018). But Congress placed the prohibition in a section entitled “Implementation of a sentence of death,” 18 U.S.C. § 3596.

At the same time, Congress treated the prohibition on

executing juveniles differently, putting it in a section

on imposing capital punishment, “Sentence of death,”

id. § 3591, and changing its once-parallel language to

provide “that no person may be sentenced to death who

was less than 18 years of age at the time of the offense,”

id. § 3591(a), (b) (emphasis added). Congress’ modifications to “include[] particular language in one section

of a statute but omit[] it in another section” show that

“Congress act[ed] intentionally and purposely,” Russello v. United States, 464 U.S. 16, 23 (1983), in classing the prohibition on executing someone “who is mentally retarded” as a present-tense bar requiring present-tense assessment at implementation.

3. The FDPA’s design and purpose

reflect Congress’ desire to ensure

that capital punishment would be

administered fairly.

The FDPA’s design and purpose likewise support

a present-tense assessment of intellectual disability

because they show Congress’ concern for fairly administering the death penalty and avoiding executing individuals who are in fact intellectually disabled.

Given strong public and political support for the

death penalty, Congress passed the FDPA to help ensure fair administration of the ultimate punishment.

See H.R. Rep. No. 103-467, at 1 (1994) (“The purpose

of this Act is to establish constitutional procedures for

the imposition of the Federal death penalty.”). Congress pursued that goal by designing separate phases

18

before implementation of a death sentence and providing additional protections against unlawful executions. See supra pp. 12–14.

Congress was aware of the consequences of a slapdash scheme. Congress first enacted in 1988 the

ADAA provision on which the FDPA’s intellectual-disability provision was modeled precisely because Georgia had recently executed an intellectually disabled

person. See 134 Cong. Rec. 22993 (1988) (Rep. Bartlett). As Petitioner observes (at 25), the prohibition’s

sponsor made clear that “[t]he purpose of this [amendment] is very much confined to prohibit execution of

those who are mentally retarded.” Id. (Rep. Levin)

(emphasis added). And another Representative underscored that “the execution of a mentally retarded person” “becomes a cruel and excessive response” because

“a mentally retarded person” “has insufficient cognitive capacity to appreciate the length between his

prior action and such belated punishment.” Id. at

22994 (Rep. Ravenel) (emphases added).

When Congress imported the ADAA’s intellectualdisability prohibition into the FDPA, it was even more

explicit. As noted, rather than placing the prohibition

in an “imposition” section, as it had in the ADAA, Congress added the prohibition to a new section on “implementation.” Supra pp. 16–17. That choice reflects

Congress’ judgment that, regardless of its imposition,

a death sentence should not be implemented on someone who is intellectually disabled. Indeed, in a Senate

Judiciary Committee Hearing on “Innocence and the

Death Penalty,” then-Chairman Joseph R. Biden, Jr.,

lamented that “the execution of” “the mentally retarded” “under our law is permissible at this very mo-

19

ment.” S. Hrg. 103-468, at 8 (1993). By creating a unified scheme in the FDPA for administering the death

penalty, Congress sought to ensure that federal execution of the intellectually disabled would no longer be

permitted.

C. By amending the FDPA after Atkins v.

Virginia, Congress indicated that it

expected intellectual disability to be

assessed under current standards.

Congress’ amendments to the FDPA—which

changed other provisions while leaving untouched the

prohibition on executing someone “who is mentally retarded”—further demonstrate Congress’ expectation

that intellectual disability would be assessed under

standards prevailing at the time the sentence is to be

“carried out.” 18 U.S.C. § 3596(c). Congress is presumed to be aware of this Court’s precedents, Merck,

559 U.S. at 648, and to adopt the Court’s construction

of a statute “when it re-enacts a statute without

change,” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,

239–40 (2009) (quoting Lorillard v. Pons, 434 U.S. 575,

580 (1978)). Here, those canons make clear that when

Congress amended the FDPA after Atkins v. Virginia,

it accepted the Court’s conclusions both that the FDPA

prohibits implementation of a death sentence on

someone who is intellectually disabled and that the

standards for evaluating intellectual disability advance over time. Consequently, Congress expected a

present-tense assessment under standards “that currently prevail,” Atkins, 536 U.S. at 311, before an execution may be “carried out,” 18 U.S.C. § 3596(c).

1. a. In Atkins, the Court held that the execution of criminals with intellectual disabilities offends

20

our society’s “evolving standards of decency” and violates the Eighth Amendment’s prohibition on excessive punishment. 536 U.S. at 321. In addition to canvassing States exempting individuals with intellectual disability from capital punishment, the Court

noted that “when Congress enacted legislation reinstating the federal death penalty, it expressly provided that a ‘sentence of death shall not be carried out

upon a person who is mentally retarded.’” Id. at 314.

The Court read the FDPA to “prohibit[] any individual

with mental retardation from being sentenced to

death or executed.” Id. at 314 n.10 (emphasis added).

The Court noted that its holding implicated disagreement about “which offenders are in fact retarded.”

Id. at 317. And the Court left “to the State[s] the task

of developing appropriate ways to enforce the constitutional restriction.” Id. Even so, the Court explained

that there is a “range of mentally retarded offenders

about whom there is a national consensus,” id., and

that States’ definitions “generally conform to the clinical definitions” set out by the American Association

on Mental Retardation and the American Psychiatric

Association, id. at 308 n.3, 317 n.22. Earlier that year,

the Court had noted that “the science of psychiatry,

which informs but does not control ultimate legal determinations, is an ever-advancing science.” Kansas v.

Crane, 534 U.S. 407, 413 (2002).

Atkins put Congress on notice that the definition

of intellectual disability is subject to an advancing understanding informed by national consensus and current clinical guidelines. That was clear from the holding itself: the Court had found no such consensus

against capital punishment of individuals with intel-

21

lectual disabilities just 13 years earlier in Penry. Atkins, 536 U.S. at 310, 314; see supra pp. 14–17. The

Court changed course in Atkins in large part as a result of “the dramatic shift in the state legislative landscape” and the FDPA. 536 U.S. at 310, 314. The Court

further observed that “this legislative judgment reflects a much broader social and professional consensus,” with “organizations with germane expertise” and

religious communities both expressing opposition to

executing offenders with intellectual disability. Id. at

316 n.21.

In addition, the Court distinguished between imposition and implementation of a death sentence.

“[E]ven in those States that allow the execution of

mentally retarded offenders, the practice is uncommon.” Id. at 316. While some states “continue to authorize executions, … none have been carried out in

decades.” Id. (emphasis added).

b. Since Atkins, the intellectual-disability inquiry has continued to advance. In Hall, the Court

held that courts cannot bar a defendant from introducing evidence of intellectual disability just because

he has an IQ score above 70. 572 U.S. at 722–23. The

Court reiterated that “[t]he legal determination of intellectual disability” must be “informed by the medical

community’s diagnostic framework” and expertise, on

which the Court has “placed substantial reliance.” Id.

at 721–22. And in Moore, the Court repeated its instruction that courts may not ignore the “medical community’s current standards” or diagnostic manuals,

which “offer ‘the best available description of how

mental disorders are expressed and can be recognized

22

by trained clinicians.’” 137 S. Ct. at 1053. A defendant’s underlying impairments do not change, but the

legal and diagnostic standards do.

2. Congress twice amended the FDPA after Atkins. Yet it never revisited the intellectual-disability

prohibition. That choice, combined with Congress’ presumed awareness of Atkins, confirms that Congress

expected that current standards would be applied to

determine intellectual disability at the time the death

sentence will be “carried out.” 18 U.S.C. § 3596(c); see

Forest Grove Sch. Dist., 557 U.S. at 239–40; Merck,

559 U.S. at 648.

First, later in 2002, Congress corrected a cross-reference in 18 U.S.C. § 3593, “Special hearing to determine whether a sentence of death is justified,” without

addressing any question of executing individuals with

intellectual disabilities. Criminal Law Technical

Amendments Act of 2002, Pub. L. No. 107-273, tit. IV,

§ 4002(e)(8), 116 Stat. 1758, 1810 (2002). Congress

also declined to alter 18 U.S.C. § 3592, “Mitigating

and aggravating factors to be considered in determining whether a sentence of death is justified,” and

§ 3591, “Sentence of death.” If Congress viewed an assessment at time of imposition as sufficient, it could

have placed an intellectual-disability prohibition at

imposition (as § 3591 provides for juveniles).

Second, in 2006, Congress again amended the

FDPA without addressing any question of intellectual

disability. This time, Congress added an aggravating

factor to § 3592 to be considered by capital sentencers.

Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, tit. II, § 206(a)(4), 120 Stat. 587,

614 (2006).

23

Congress’ choice not to alter § 3596(c)’s command

that “[a] sentence of death shall not be carried out

upon a person who is mentally retarded” in the wake

of Atkins is revealing. All here agree that Atkins and

the FDPA “provide substantively identical protection

and are governed by the same standard.” Pet. App.

PA008. But while Atkins “le[ft] to the State[s] the task

of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,” 536 U.S. at 317, Congress had already made

the choice to require a present-tense assessment of

whether “a person … is mentally retarded” at the time

the sentence will be “carried out,” 18 U.S.C. § 3596(c).

Congress chose to retain that language when it

amended the FDPA after the Court in Atkins interpreted the FDPA to prohibit execution of an intellectually disabled person and the intellectual-disability inquiry as turning on advancing standards reflecting

national consensus and clinical guidance. That choice

shows that Congress intended an assessment of intellectual disability under legal and diagnostic standards current at the time of execution.

D. Constitutional

avoidance

principles

likewise support construing the FDPA

according to its plain language.

Constitutional avoidance principles too support a

present-tense assessment of intellectual disability under current legal and diagnostic standards.

The Eighth Amendment restricts the government’s “‘power to take the life of’ any intellectually

disabled individual.” Moore, 137 S. Ct. at 1048 (quoting Atkins, 536 U.S. at 321). And States may not “disregard” the “constraint” supplied by “current medical

24

standards,” which “[r]eflect improved understanding

over time.” Id. at 1049, 1053. Reading the FDPA to

permit execution of a prisoner “who is mentally retarded,” 18 U.S.C. § 3596(c), under standards current

at implementation just because an earlier assessment

under earlier standards reached a different result

would “creat[e] an unacceptable risk that persons

with intellectual disability will be executed,” in violation of the Eighth Amendment. Moore, 137 S. Ct. at

1044 (quoting Hall, 572 U.S. at 704).

*

*

*

Statutory text, structure, purpose, and history,

plus constitutional avoidance principles, all point in

the same direction. Congress provided in the present

tense, in a section devoted to the death penalty’s implementation rather than its imposition, that “[a] sentence of death shall not be carried out upon a person

who is mentally retarded.” 18 U.S.C. § 3596(c). Congress grouped that prohibition with other presenttense prohibitions that indisputably must be assessed

at the time the execution is to “be carried out.” Id.

§ 3596(b), (c). And Congress adhered to that choice after Atkins made clear that the standards for assessing

intellectual disability are continually advancing to reflect national and professional consensus informed by

clinical guidelines. Congress’ evident purpose—consistent with this Court’s Eighth Amendment precedents—was to avoid the intolerable risk of executing

people with intellectual disability.

The Court should honor Congress’ intent.

25

CONCLUSION

The petition for writ of certiorari should be

granted.

December 3, 2020

Respectfully submitted,

Parker Rider-Longmaid

Amelia A. DeGory

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

Meir Feder

Counsel of Record

JONES DAY

250 Vesey Street

New York, NY 10281

212-326-3939

mfeder@jonesday.com

Counsel for Amicus Curiae