Amicus Curiae Brief — Corey Johnson, Applicant v. United States

No. 20A130

IN THE

Supreme Court of the United States

COREY JOHNSON,

Applicant,

v.

UNITED STATES OF AMERICA,

Respondent.

On Emergency Application for Stay Pending

Appeal to the United States Court of Appeals

for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF THE CONSTITUTION PROJECT

AS AMICUS CURIAE IN SUPPORT

OF APPLICANT

Meir Feder

Parker Rider-Longmaid

JONES DAY

Counsel of Record

250 Vesey Street

Amelia A. DeGory

New York, NY 10281 JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

priderlongmaid@jonesday.com

Counsel for Amicus Curiae

MOTION FOR LEAVE TO FILE

The Constitution Project at the Project On Government Oversight (TCP) seeks leave to file the accompanying brief in support of Corey Johnson’s emergency application for a stay of execution pending appeal to the court of appeals.

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, including the

Eighth Amendment prohibition on executing prisoners with intellectual disabilities, and ensuring that

those guarantees are respected and enforced by all

three branches of government. Accordingly, TCP regularly files amicus briefs in this Court and others 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 has a strong interest in the proper interpretation of the Federal Death Penalty Act (FDPA). TCP

filed an amicus brief on the FDPA issue in this case

before the court of appeals below, and also filed an

amicus brief on the FDPA before this Court in Bourgeois v. Watson, 141 S. Ct. 507 (2020). In Bourgeois,

Justice Sotomayor, joined by Justice Kagan, dissented

from the denial of certiorari and stay of execution, noting that whether the FDPA permits “the United States

to ‘carr[y] out’ a death sentence upon a person who

‘is’ … intellectually disabled under current diagnostic

standards” is “a serious question that is likely to recur.”

Id. at 509 (Sotomayor, J., joined by Kagan, J., dissenting from denial of cert. and application for stay). That

question has indeed recurred—here, and just one

month later—because of the government’s last-minute attempt to execute a defendant who, according to

multiple experts, is intellectually disabled under modern standards, but who has never had a hearing. See

C.A. Dkt. 5-1. TCP’s proposed amicus brief “may be of

considerable help to the Court,” Sup. Ct. R. 37.1, because it offers distinct arguments, not developed in

depth by the parties, about the FDPA’s prohibition on

executing defendants with intellectual disabilities.

TCP has a strong interest too in promoting the

rule of law and the public’s confidence in our justice

system. Permitting the government to rush to execute

Mr. Johnson, without a hearing, despite the substantial evidence that he is intellectually disabled, and despite the constitutional violation it thus likely would

cause, “risk[s] undermining the public’s confidence in

the judicial process.” Buck v. Davis, 137 S. Ct. 759, 778

(2017) (quoting Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 863–64 (1988)). As Judge Wynn

put it in dissenting from the court of appeals’ 8–7 denial of rehearing en banc, “Johnson makes a compelling statutory argument that the Federal Death Penalty Act, 18 U.S.C. § 3596(c), prohibits his execution,”

because “newly available evidence convincingly

demonstrates that his old IQ score is incorrect and

that he is intellectually disabled under current diagnostic standards. But no court has ever considered

such evidence.” App. 813–14. “[J]ustice must satisfy

the appearance of justice.” Liljeberg, 486 U.S. at 864

(citation omitted). A rush to judgment on an irrevocable penalty does not.

Given the expedited consideration of the stay application and the fact that Mr. Johnson’s execution is

currently scheduled for today, January 14, 2021, TCP

respectfully requests leave to file the enclosed brief in

support of Mr. Johnson’s application for stay of execution, and without ten days’ advance notice to the parties of intent to file. See Sup. Ct. R. 37.2(a). The court

of appeals denied Mr. Johnson’s motion for a stay of

execution on January 12, 2021; Mr. Johnson filed a petition for rehearing en banc on January 13, 2021; and

the court of appeals denied that petition by a vote of

8–7, and Mr. Johnson filed his stay application before

this Court, on January 14, 2021.

Counsel for Mr. Johnson has consented to the filing of this brief without ten days’ advance notice.

Counsel for the government has indicated that the

government does not oppose the filing of this brief

without that notice.

CONCLUSION

The Court should grant leave to file the accompanying amicus brief in support of Corey Johnson’s

emergency application for stay of execution.

January 14, 2021

Respectfully submitted,

Meir Feder

Parker Rider-Longmaid

JONES DAY

Counsel of Record

Amelia A. DeGory

250 Vesey Street

New York, NY 10281 JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

priderlongmaid@jonesday.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

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’ deliberate use of the

present tense precludes

execution of someone who “is

mentally retarded” as assessed

at the time of execution...................... 7

2.

Fundamental interpretive

principles confirm that

Congress deliberately used

present-tense language ...................... 8

The FDPA’s structure and context

confirm that Congress intended a

present-tense assessment of

intellectual disability under current

standards .................................................. 11

1.

Congress distinguished between

imposition and implementation

of a death sentence throughout

the FDPA .......................................... 11

ii

TABLE OF CONTENTS

(continued)

Page

2.

Congress’ re-enactment of the

ADAA’s intellectual-disability

bar in the FDPA against the

backdrop of Penry v. Lynaugh

confirms that Congress

intended a present-tense

prohibition ........................................ 13

3.

The FDPA’s design and purpose

reflect Congress’ desire to

ensure that capital punishment

would be administered fairly ........... 15

C.

By amending the FDPA after Atkins

v. Virginia, Congress indicated that

it expected intellectual disability to

be assessed under current standards ...... 16

D.

Constitutional avoidance principles

too support a present-tense

assessment of intellectual disability

under current standards .......................... 21

E.

Given the proper construction of the

FDPA, the district court erred in

concluding that Mr. Johnson should

have pressed his intellectualdisability claim earlier ............................. 22

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

iii

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

Bostock v. Clayton County,

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

Bourgeois v. Watson,

141 S. Ct. 507 (2020) ............................................ 22

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) ............................................ 9

Culbertson v. Berryhill,

139 S. Ct. 517 (2019) ............................................ 11

Ford v. Wainwright,

477 U.S. 399 (1986) ...................................... 3, 9, 10

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

557 U.S. 230 (2009) .............................................. 17

Furman v. Georgia,

408 U.S. 238 (1972) (per curiam) ........................ 12

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) .................................................. 7

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Hall v. Florida,

572 U.S. 701 (2014) ................................ 5, 6, 19, 21

Kansas v. Crane,

534 U.S. 407 (2002) .............................................. 18

Lagos v. United States,

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

Lorillard v. Pons,

434 U.S. 575 (1978) .............................................. 17

Merck & Co. v. Reynolds,

559 U.S. 633 (2010) .................................... 9, 15, 17

Moore v. Texas,

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

Moore v. Texas,

139 S. Ct. 666 (2019) (per curiam) .................. 1, 21

Nijhawan v. Holder,

557 U.S. 29 (2009) ................................................ 10

Penry v. Lynaugh,

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

Porter v. Nussle,

534 U.S. 516 (2002) ........................................ 11, 13

Russello v. United States,

464 U.S. 16 (1983) .......................................... 23, 24

Shoop v. Hill,

139 S. Ct. 504 (2019) (per curiam) ...................... 22

Trop v. Dulles,

356 U.S. 86 (1958) ................................................ 14

v

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Briggs,

141 S. Ct. 467 (2020) ............................................ 22

United States v. Texas,

507 U.S. 529 (1993) .......................................... 9, 10

STATUTES

18 U.S.C. § 3591 ............................................ 19, 20, 23

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

18 U.S.C. § 3593 ........................................ 4, 12, 15, 19

18 U.S.C. § 3594 .................................................... 4, 11

18 U.S.C. § 3595 ........................................................ 12

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

18 U.S.C. § 3597 ........................................................ 24

28 U.S.C. § 2254 ........................................................ 22

28 U.S.C. § 2255 ........................................................ 22

Adam Walsh Child Protection and Safety

Act of 2006, Pub. L. No. 109-248, 120

Stat. 587 (2006) .................................................... 20

Anti–Drug Abuse Act of 1988, Pub. L.

No. 100-690, 102 Stat. 4390, 21

U.S.C. § 848(l) .............................................. passim

Criminal Law Technical Amendments Act

of 2002, Pub. L. No. 107-273, 116 Stat.

1758 (2002) ........................................................... 19

Dictionary Act, 1 U.S.C. § 1 .................................... 3, 7

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

American Psychiatric Association,

Diagnostic and Statistical Manual of

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

4 W. Blackstone, Commentaries ........................... 9, 10

134 Cong. Rec. 22,993 (1988) .................................... 16

H.R. Rep. No. 103-467 (1994).................................... 15

Oxford English Dictionary .................................. 11, 12

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.1

1 Consistent with Rule 37.2(a), counsel for Mr. Johnson con-

sented in writing to the filing of this brief, and counsel for the

United States indicated in writing that the government does not

oppose the filing of this brief. 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 defendant if he is intellectually disabled when the sentence will be “carried out.” That language—as the structure and history

of the statute, plus constitutional avoidance principles,

confirm—requires assessing the defendant under current legal and diagnostic standards.2

The district court here disagreed, reasoning that

because intellectual disability is a “permanent condition,” and the court of appeals denied in 2004 an intellectual-disability claim Mr. Johnson brought in 1998,

the intellectual-disability claim Mr. Johnson seeks to

bring here under § 3596(c) would be barred by “res judicata.” App. 276, 280–81. Not so. The claim Mr. Johnson brings today under § 3596(c) is not the same claim

he brought in 1998. The legal and diagnostic standards for assessing intellectual disability have advanced significantly since then. And § 3596(c) requires a present-tense assessment of disability at the

time of execution—an assessment under current legal

and diagnostic standards.

Start with the statute’s text. The very first provision of the U.S. Code “ascribes significance to verb

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

tense.” Carr v. United States, 560 U.S. 438, 448 (2010)

(discussing the Dictionary Act, 1 U.S.C. § 1). Presenttense language is especially telling where it contrasts

with past-tense language appearing elsewhere in a

statute. See id. at 450. And here, although Congress

used the past tense to refer to numerous past-tense

determinations under the FDPA, 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 precedent and the common law, even if the defendant 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 congruous present-tense assessments at the time of execution for all three conditions.

4

The FDPA’s structure confirms that Congress’ use

of present-tense language was intentional. The intellectual-disability prohibition appears in a section entitled “Implementation of a sentence of death.” 18

U.S.C. § 3596 (emphasis added). But “Imposition of a

sentence of death” is the subject of an earlier provision,

id. § 3594 (emphasis added), as is the “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’ choice to require the intellectual-disability assessment at implementation was no accident.

Even before the FDPA, the Anti–Drug Abuse Act of

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

4390, 21 U.S.C. § 848(l), contained what would become the FDPA’s intellectual-disability prohibition,

and likewise paired it with a present-tense bar on execution of mentally incompetent defendants. 21 U.S.C.

§ 848(l) (1988). Intellectual disability was not a mitigating factor at sentencing. See id. § 848(m). In Penry

v. Lynaugh, 492 U.S. 302, 324–30 (1989), however,

this Court held that the Eighth Amendment required

consideration of intellectual disability merely as mitigating evidence weighing against imposition of the

death penalty. Congress responded in the FDPA by

staying its course, readopting § 848(l)’s language verbatim in § 3596(c).

Congress’ choice to require a time-of-execution assessment matters. Although the underlying impairments are permanent, the intellectual-disability inquiry is not. This Court’s decisions leave no doubt on

5

that score. And Congress endorsed that understanding of advancing standards by amending the FDPA

against the backdrop of this Court’s precedent.

Specifically, beginning with Atkins v. Virginia, 536

U.S. 304, 321 (2002), the Court’s decisions have established that the test for assessing intellectual disability

will evolve as the clinical authorities continue to refine the relevant diagnostic standards and the Court

continues to provide guidance on the law. See also

Moore v. Texas, 137 S. Ct. 1039, 1049–53 (2017); Hall

v. Florida, 572 U.S. 701, 710–14, 721–23 (2014). 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 national consensus,

with definitions that “generally conform to the clinical

definitions” set out by clinical authorities. 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.

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, consistent with this

Court’s understanding of intellectual disability and

the FDPA’s time-of-execution prohibition. As “the

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

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

6

may not execute someone who is intellectually disabled under standards prevailing when the execution

will “be carried out.”

Constitutional avoidance principles bolster that

reading. The Eighth Amendment prohibits the execution of “any intellectually disabled individual.” Moore,

137 S. Ct. at 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 intellectual disability under standards current at

the time of execution “creat[es] 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 defendant has previously litigated an intellectual-disability claim under outdated

standards, so long as he can show the possibility of a

different result of a new intellectual-disability claim

under current, materially advanced standards. 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, those 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). As

interpretive canons confirm, that language prohibits

7

the federal government from executing someone who

“is” intellectually disabled under standards applicable

at the time of execution.

1. Congress’ deliberate use of the

present tense precludes execution of

someone who “is mentally retarded”

as assessed at the time of execution.

The Dictionary Act requires courts to “look[] to

Congress’ choice of verb tense to ascertain a statute’s

temporal reach.” Carr, 560 U.S. at 448 (citing

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 statute provides

both that “words used in the present tense include the

future as well as the present,” 1 U.S.C. § 1, and that

“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.; accord

Gwaltney, 484 U.S. at 57 (Congress “knows how to

avoid … prospective implication by using language

that explicitly targets” the past.); Barrett, 423 U.S. at

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

been completed”).

8

Those plain-meaning principles apply here too.

Had Congress intended to permit the execution of any

defendant who had litigated an intellectual-disability

claim—even though he is intellectually disabled under current standards—it could have “varied the verb

tenses” to say so. Carr, 560 U.S. at 450. For example,

Congress could have provided that “a sentence of

death shall not be carried out upon a person who has

been found to be mentally retarded.” Such a pasttense formulation would focus on a defendant’s opportunity to raise an intellectual-disability claim 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).

Congress’ decision to use present tense language

in § 3596(c) contrasts sharply with its use of pasttense language elsewhere. See, e.g., id. § 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 defendant has

previously been convicted of” a felony (emphasis

added)). Indeed, 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 simply said so.

2. Fundamental interpretive principles

confirm that Congress deliberately

used present-tense language.

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

forward-looking construction.” Carr, 560 U.S. at 449.

9

Words are known by the company they keep (noscitur

a sociis). E.g., Lagos v. United States, 138 S. Ct. 1684,

1688–89 (2018). And here, Congress grouped the intellectual-disability prohibition with two other prohibitions necessarily requiring present-tense, time-ofexecution assessment: 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). Pregnancy obviously must be assessed at the time of execution. The same is true for

mental incompetence, because a defendant competent

at sentencing may deteriorate and become incompetent before execution. Ford, 477 U.S. at 401–02; infra

p. 10. By grouping together these present-tense prohibitions, Congress provided “powerful evidence,” Carr,

560 U.S. at 450, that it intended intellectual disability

to be treated the same way, and assessed at execution.

History and precedent reinforce that point. 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). They also presume that Congress is aware of “relevant judicial precedent.” Merck

& Co. v. Reynolds, 559 U.S. 633, 648 (2010). Here, the

common law prohibited the execution of pregnant

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

It also “stayed” execution of mentally incompetent defendants, even those sentenced to death while competent and “becom[ing] of nonsane memory” only “after

10

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

Blackstone, Commentaries *24–25). The Eighth

Amendment rule is the same. In Ford, the 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 thus 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. 11–13.

When Congress enacted the ADAA, containing the

intellectual-disability prohibition it later readopted

verbatim in § 3596(c), see infra pp. 13, 15, 16, it did so

against the backdrop of Ford and the common law.

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,

557 U.S. 29, 39 (2009). By grouping together three

prohibitions with parallel present-tense verbs prohibiting the government from “carr[ying] out” a death

11

sentence, Congress indicated that it intended all three

prohibitions to be assessed at the time of execution.

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 standards governing 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.

Reading § 3596(c)’s prohibition on executing individuals who are intellectually disabled to require a

present-tense assessment also best accords with “the

structure of the [FDPA] and its other provisions.” Culbertson v. Berryhill, 139 S. Ct. 517, 522 (2019) (quotation marks omitted). The FDPA’s design shows that

Congress intended the intellectual-disability determination to be made under standards current at implementation, rather than imposition, of a death sentence.

Congress devoted separate provisions to imposition and implementation of a death sentence. See 18

U.S.C. § 3594 (entitled “Imposition of a sentence of

death”); id. § 3596 (entitled “Implementation of a sentence of death”); see also 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.”). “Impose”

means “to put or subject … to a penalty,” Impose, Ox-

12

ford English Dictionary, https://oed.com/view/Entry/92591, whereas “Implement” means “to complete,

perform, carry into effect … ; to fulfil,” Implement, Oxford English Dictionary, https://oed.com/view/Entry/92452. Having drawn that distinction, Congress

ranked intellectual disability as a reason not to implement a sentence. Id. § 3596(c). It did not make intellectual disability a reason not to impose a death sentence.

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.” “[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. As noted, § 3596 contains prohibitions that must by their very nature be

assessed at implementation. Supra pp. 8–11. In addition, the imposition stage is guided by other provisions that do not mention intellectual disability at all:

“Mitigating and aggravating factors to be considered

in determining whether a sentence of death is justified,” 18 U.S.C. § 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 under

current legal and diagnostic standards, regardless of

what transpired earlier.

13

Beyond all that, § 3596 itself distinguishes between imposition and implementation. “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. 7–8.

2. Congress’

re-enactment

of

the

ADAA’s intellectual-disability bar in

the FDPA against the backdrop of

Penry v. Lynaugh confirms that

Congress intended a present-tense

prohibition.

Congress’ decision to place the intellectual-disability prohibition at the implementation stage is particularly significant given the Court’s decision several

years earlier in Penry v. Lynaugh. Cf. Porter, 534 U.S.

at 528 (“Congress expects its statutes to be read in

conformity with th[e] Court’s precedents.”). The Court

in Penry (in 1989) viewed intellectual disability not as

a per se bar on execution but as a non-dispositive factor relevant to whether a death sentence should be imposed in the first place. 492 U.S. at 340. Congress had

already rejected that approach in the ADAA, providing that “[a] sentence of death shall not be carried out

upon a person who is mentally retarded,” and pairing

that prohibition with a present-tense bar on execution

of mentally incompetent defendants, 21 U.S.C. § 848(l)

(1988); see supra p. 4. A few years after Penry in the

1994 FDPA, Congress doubled down on the ADAA’s

framework, adopting the ADAA’s intellectual-disability prohibition verbatim. 18 U.S.C. § 3596(c).

14

In Penry, the Court rejected the argument, which

it would later accept in Atkins, that “the Eighth

Amendment prohibits the execution of mentally retarded persons.” 492 U.S. at 329; see infra pp. 16–19.

The Court thus declined to limit the States’ and federal government’s “power to impose” the death penalty.

Penry, 492 U.S. at 329–30. 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 opined 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 non-dispositive consideration in the

decision whether to impose a death sentence, not

whether to implement one.

In evaluating Penry’s Eighth Amendment argument that there was “an emerging national consensus

against the execution of the mentally retarded, reflecting the ‘evolving standards of decency that mark

the progress of a maturing society,’” id. at 333–34

(quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)), however, the Court noted that federal law already provided a contrary rule. The Court observed that the

ADAA already “prohibits execution of a person who is

mentally retarded.” Id. at 334 (citing 21 U.S.C. § 848(l)

(1988)).

15

Congress affirmed its commitment to that approach when it readopted the ADAA’s intellectual-disability provision verbatim after Penry in the FDPA.

Not only did Congress provide that an intellectually

disabled individual cannot be executed, but it did so

in a new section centering on the implementation of a

death sentence, 18 U.S.C. § 3596(c). Just as Congress

had declined to make intellectual disability a mitigating factor under the ADAA in 21 U.S.C. § 848(m), Congress refused to make it a mitigator under the FDPA

in 18 U.S.C. §§ 3592 or 3593, where intellectual disability would be found had Congress followed the

Court’s approach in Penry. That choice was not accidental. Congress is presumed to be “aware of relevant

judicial precedent.” Merck, 559 U.S. at 648.

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 at the time, Congress passed the FDPA

“to establish constitutional procedures for the imposition of the Federal death penalty.” H.R. Rep. No. 103467, at 1 (1994). Congress pursued that goal by designing separate phases before implementation of a

death sentence and providing additional protections

against unlawful executions. See supra pp. 11–13.

16

Members of Congress were 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. 22,993 (1988)

(Rep. Bartlett). 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 22,994 (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, Congress added the prohibition to a new section on “implementation.” Supra

p. 15. That choice reflects Congress’ judgment that, regardless of its imposition, a death sentence should not

be implemented on someone who is intellectually disabled.

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

17

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 the Supreme 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 under standards “that currently prevail,” 536 U.S.

at 311, and that the standards for evaluating intellectual disability advance over time, id. at 311–12, 321.

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

our society’s “evolving standards of decency” and violates the Eighth Amendment’s prohibition on excessive punishment. Id. at 321. 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

18

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 observed 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 ever-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

intellectual disabilities just 13 years earlier in Penry.

Atkins, 536 U.S. at 310, 314; see supra pp. 13–15. The

Court changed course in Atkins in large part because

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.

The Court also 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

19

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 a court 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

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.

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 did not change 18 U.S.C. § 3592, “Mitigating and

aggravating factors to be considered in determining

whether a sentence of death is justified,” and § 3591,

20

“Sentence of death.” If Congress viewed an assessment at 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).

Congress’ choice not to alter § 3596(c) when it

amended the FDPA in the wake of Atkins shows that

it intended courts to assess intellectual disability under legal and diagnostic standards current at the time

of execution. 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 with the language of § 3596(c) to require a present-tense assessment for federal defendants. Supra pp. 6–8. And Congress chose to retain

that language—which the Court in Atkins had interpreted to prohibit the execution of an intellectually

disabled person, see 536 U.S. at 314 n.10—even

though Atkins made the intellectual-disability inquiry

turn on ever-advancing standards reflecting national

consensus and clinical guidance, see id. at 311–12, 321.

21

D. Constitutional avoidance principles too

support a present-tense assessment of

intellectual disability under current

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 the government may

not “disregard” the “constraint” supplied by “current

medical standards,” which “[r]eflect improved understanding over time.” Id. at 1049, 1053. The Court has

come to recognize, for instance, that IQ scores must be

understood “not as a single fixed number but as a

range” with a standard error of measurement; that individuals with IQ scores above 70 may be intellectually disabled if they have limitations in adaptive functioning, Hall, 572 U.S. at 712–14; that courts, like clinicians, must not rely on “lay stereotypes of the intellectually disabled,” Moore, 137 S. Ct. at 1051–52; and

that they must rely more “upon the adaptive deficits”

than upon “apparent adaptive strengths,” Moore v.

Texas, 139 S. Ct. 666, 670 (2019) (per curiam). Reading the FDPA to permit execution of a defendant “who

is mentally retarded,” 18 U.S.C. § 3596(c), under current standards just because an earlier assessment under outdated 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).

22

E. Given the proper construction of the

FDPA, the district court erred in

concluding that Mr. Johnson should have

pressed his intellectual-disability claim

earlier.

The district court here wrongly concluded that Mr.

Johnson’s 28 U.S.C. § 2255 motion was second or successive because Mr. Johnson had “already raised his

claim that his intellectual disability precludes his execution.” App. 276. The claim Mr. Johnson presses

here is not the same claim he raised in 1998. Here, Mr.

Johnson claims that he is intellectually disabled under current legal and diagnostic standards, which did

not govern in 1998 or even 2004.

Contrary to the district court’s reasoning, it is not

the defendant’s condition that changes, but the standard for determining that condition. “[W]hile a prisoner’s intellectual disability may not change, the medical standards used to assess that disability constantly evolve as the scientific community’s understanding grows.” Bourgeois v. Watson, 141 S. Ct. 507,

508–09 (2020) (Sotomayor, J., joined by Kagan, J., dissenting from denial of cert. and application for stay);

see also United States v. Briggs, 141 S. Ct. 467, 472

(2020) (acknowledging that under the Court’s Eighth

Amendment cases, “the evolving-standards test could

later lead to a different result … at some point in the

future”); Shoop v. Hill, 139 S. Ct. 504, 505–09 (2019)

(per curiam) (acknowledging that focusing only on the

standard set out in Atkins, as required when reviewing state-court decisions under 28 U.S.C. § 2254(d),

could produce a different result than relying on the

current standard under Moore). And the FDPA’s “text

and structure” track that understanding. Bourgeois,

23

141 S. Ct. at 508 (Sotomayor, J., dissenting); see supra

pp. 6–13. The district court’s atextual distinction between intellectual disability and incompetency, in contrast, produces “incongruity among neighboring verbs”

and provisions, Carr, 560 U.S. at 449, that provide, in

parallel, that “[a] sentence of death shall not be carried out upon a person who is mentally retarded” or

“lacks the mental capacity to understand the death

penalty.” 18 U.S.C. § 3596(c).

By focusing on the permanency of intellectual disability as a condition, the district court also overlooked the way the FDPA treats the fixed condition of

youth at the time of the criminal offense. The FDPA

provides in its “Sentence of death” provision “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). That language makes clear that

youth at the time of an offense bars not just implementation, but also imposition, of a death sentence,

and, as such, must be assessed at the outset. But no

such language appears in § 3596. This Court must

presume Congress’ choice to prohibit executing someone “who is mentally retarded” using present-tense

language in a section on implementation to be deliberate. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” Russello v. United

States, 464 U.S. 16, 23 (1983).

None of this means that “a fresh intellectual-disability claim … arise[s] every time the medical community updates its literature.” App. 282. To the contrary,

a defendant must be able to show that current legal

24

and diagnostic standards have materially advanced—

i.e., that he is intellectually disabled under current

standards even if he had an intellectual-disability

claim denied earlier under outdated standards. Because that showing is likely to be demanding, there is

little reason to worry that interpreting § 3596(c) according to its plain text will lead to “repeated litigation.” App. 281.

Finally, the district court suggested that Mr. Johnson cannot raise a § 3596(c) claim because he was sentenced “to death under the now-repealed sentencing

provisions of 21 U.S.C. § 848, rather than the FDPA.”

App. 271–72 n.5. But § 3596(c) provides that “[a] sentence of death,” without qualification, “shall not be

carried out upon a person who is mentally retarded,”

or upon someone who is mentally incompetent. 18

U.S.C. § 3596(c). Section 3596(a), in contrast, addresses the method of execution for “[a] person who

has been sentenced to death pursuant to this chapter.”

Id. § 3596(a) (emphasis added). Congress’ omission of

such limiting language in § 3596(c) (and other FDPA

provisions, e.g., § 3597) must be presumed intentional,

see, e.g., Russello, 464 U.S. at 23. Regardless, as the

district court acknowledged, “§ 848(l) and § 3596(c)

contain identically worded prohibitions on executing

intellectually disabled individuals,” App. 272 n.5; see

supra pp. 13–14, so § 848(l) too bars execution of an

individual who is intellectually disabled under current legal and diagnostic standards.

Mr. Johnson’s case merits this Court’s review. “If

[his] death sentence is carried out today, the United

States will execute an intellectually disabled

person, which is unconstitutional.” App. 814 (bolding

in original).

25

CONCLUSION

The Court should grant Mr. Johnson’s stay application.

January 14, 2021

Respectfully submitted,

Parker Rider-Longmaid

Meir Feder

JONES DAY

Counsel of Record

250 Vesey Street

Amelia A. DeGory

New York, NY 10281 JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

priderlongmaid@jonesday.com

Counsel for Amicus Curiae