Opposition Brief — Randall T. Deviney, Petitioner v. Florida

NO. 21-6429

IN THE SUPREME COURT OF THE UNITED STATES

RANDALL T. DEVINEY,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

CAROLYN M. SNURKOWSKI

Associate Deputy Attorney General

Counsel of Record

Michael T. Kennett

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

Carolyn.Snurkowski@myfloridalegal.com

capapp@myfloridalegal.com

(850) 414-3300

COUNSEL FOR RESPONDENT

Capital Case

QUESTIONS PRESENTED

Whether Petitioner’s death sentence violates the Due Process Clause of

the Fourteenth Amendment — specifically, whether the failure to apply

the beyond a reasonable doubt standard to the jury’s weighing of

aggravating factors and mitigating circumstances violated this Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016).

Whether Petitioner’s death sentence violates the Eighth Amendment —

specifically, whether a death sentence for a defendant who was at least

18 years of age but less than 21 years of age at the time of the crime

violates the evolving standards of decency that mark the progress of a

maturing society as articulated by this Court in Trop v. Dulles, 356 U.S.

86 (1958), applied in Roper v. Simmons, 5438 U.S. 551 (2005).

TABLE OF CONTENTS

QUESTIONS PRESENTED 00000... cee cee sccescseeseeeeeneeeeeesesesesneeesaneeeseneesesaceseneessaeeeseeesneeses 1

TABLE OF CONTENTS 1.0... ccccccceeseeesenceeessceeresneetssaeesesaececesneeeessaaeeeesseceeevsseusesseeessnss ul

TABLE OF CITATIONS 200.0... ccccseeesseeeseseeeesseeeeeneeecnneeeseseeeeseseesaeeeseseceessseeesssneeess lll

OPINION BELOW... cece cece cece ceeecesneeceneeeseeeeseeseseessaeeescesesseneeessaeessseeesseesennesseeees 1

JURISDICTION o.oo. cece cece cc ccssessseeesseeesseeseceeesaeseaeeesseeeccuesseueeesenesesseeesseneeseneeseessaeens 2

STATEMENT OF THE CASE AND FACTS |... cc ccccccecceeeeeeeeeeeceeeseapeseeaneesseeensaeeees 2

REASON FOR DENYING THE WRIT ooo... eeeecseceeeeeeeeeeeeeneneesesseeeessneeeseaessanees 3

CONCLUSION 0.00 cceeesaceeessceeesseeersaceeseanesesaeessceeeseeeneaeeeesecaueesssneessseeeenes 32

CERTIFICATE OF SERVICE oo e cee eceesceeeeeeeeceseeeesseneeeesscneeeesessneecesseseeseaeesaes 33

TABLE OF CITATIONS

Cases

Abrams v. United States, 250 U.S. 616 (1919) ou... ee eeeeeccececeessesceesecssessrenseees 27

Allen v. State, 322 So. 3d 589 (Fla. 2021) 00... ee ccseccssecseeceseeesseeeessesessseecceseeeceeeneeeas 16

Alleyne v. United States, 570 U.S. 99 (2018) ou... eccccsesesssssecsnsssssessseeeceseeeaes 12, 13, 15

Apprendi v. New Jersey, 5380 U.S. 466 (2000)..............cceccccecssssssssessecsceecesceeeceeene passim

Atkins v. Virginia, 536 U.S. 804 (2002) .00...... ee ceeecccescseeesseecseeeeessseeeesssseneseeeseneesans 27, 30

Baze v. Rees, 553 U.S. 35 (2008) .0........cccccccccccccceeceeceneececeneeseuneanesnasaneneeescucancuncuceaeeneeess 23

Caldwell v. Mississippi, 472 U.S. 820 (1985) ..0.........cecescsecceesesssssscneceeecececeeaeeasenenesnees 16

Clemons v. Mississippi, 494 U.S. 738 (1990) ........cccccccsssessssesssssecesseceesssseeceeesesecaeecses 17

Coker v. Georgia, 433 U.S. 584 (1977)......... ececesaceeeeseeecsaeersneeeessenecersenecess 23, 28, 30, 31

Commonwealth v. Bredhold, 2017 WL 8792559 (Ky. Cir. Ct. 7th Div. Aug. 01, 2017)

eceeesssneeeescuseeeesneessueecenaetecsesecesaeseeeecaaeeeeeesseaecesseceseusueseessenesaeecaneseseaaeeeesesseaeeecensecsneress 22

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020) ........ ccc cceeseessseeseveeveseesees 22

Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005)........ccccccccccssstccccescceeenesceeseeseneaees 17

Deviney v. State, 322 So. 3d 563 (Pla. 2021)... occ cccccccccsecesssseseeeseeseeees 1, 2, 3, 20

Diaz v. Kentucky, 141 S. Ct. 1233 (2021)... cccccecsececccccessecceccecceesesasesussssessnseecees 22

Evans v. State, 226 So. 3d 1 (Miss. 2017) 2.0.0.0... cc ceceseesesesescececeseceseeseceecsssseseeeeeeeees 17

Ex Parte Alabama, 223 So. 3d 954 (Ala. Crim. App. 2016) ..............cccccc cece ececeeseeeeeeeee 17

Foster v. Chatman, 136 S. Ct. 1787 (2016)............ccccccsccseeeessssneeccceeccesseceeeceuensensensaaeeas 12

Furman v. Georgia, 408 U.S. 238 (1972) .......cccccccccccceeseecssssssssessensssssscssccssceeeeeeaes passim

Graham v. Florida, 560 U.S. 48 (2010) 20.00... eee ccccccccccccccccceccececeesesecssanesseceseeeeeeeacenees 20

Hall v. Florida, 572 U.S. 701 (2014)... ccecccecssssesssnecssecessesessseeeessseneeecessseecesseceaaes 30

Hurst v. Florida, 1386 S. Ct. 616 (2016) ............ecccccecsccccecsssscecceccseceeersesseesecnssnserecsanenen i

Hurst v. Florida, 577 U.S. 92 (2016)............cccccccecccevecccessssessssevsccsececesseuseneaseneecs 2, 5, 18

Hurst v. State, 202 So. 3d 40 (Fla. 2016) .......... ccc cccccccccsesesssssssseesnscceseccoccecareusecevees 5, 8

In re Garner, 612 F.3d 533 (6th Cir. 2010)... ececceecesecsecseceeeeeeeccesecaseeeeceseess 21

Kansas v. Carr, 577 U.S. 108 (2016)............ccssssssessssecssseccenceessecesaneneesceesceseneaes 13, 14, 16

Kennedy v. Louisiana, 554 U.S. 407 (2008)... eecscccccesececccccecevsceceesceusecnecseneeesenece 30

McGautha v. California, 402 U.S. 183 (1971) ou... cccceccccccccccccccccccecceecesceeacesccsceceeceeeens 28

McKinney v. Arizona, 140 S. Ct. 702 (2020) 00.0... eccccsscceccsccceccecsceceeeecceceeseueees passim

Melton v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1234 (11th Cir. 2015)... ee 21

Miller v. Alabama, 567 U.S. 460 (2012) 2000.0... cceecccceeesssedenecessssseeneaneceeseeeeees 20, 23, 24

Miller v. State, 42 So. 3d 204 (Fla. 2010) .o.......e ec ceccccesssscesseecsseeessneecessseeeeesecssneeerseeeees 5

Missouri v. Holland, 252 U.S. 416 (1920) 2.0.0... ccccesssssssecessssssceceenecceeeneeeseesuseenensens 28

Mitchell v. State, 235 P.3d 640 (Okla. Crim. App. 2010) 00... ceeeeeeeeeeeceeeees 22

N. Sec. Co. v. United States, 1938 U.S. 197 (1904)... ccccesceceeseeecsseeesseesseeeseenssesees 29

Newberry v. State, 288 So. 3d 1040 (Fla. 2019)... ccssescesseceeceeeestereeeeeeeenes 16

Nunnery v. State, 263 P.3d 235 (Nev. 2011).............cecesessseceesssenceneeseeseeneeeneeeaeeseseanecees 17

Oken v. State, 835 A.2d 1105 (Md. Ct. App. 2008)........000 eee ccccccceceesececeeeeseeneeeees 17

Parr v. Quaterman, 472 F.3d 245 (5th Cir. 2006) .........ccccccccccsccsssscessseesseesssesseenseeeeees 21

People v. Suarez, 471 P.3d 509 (Cal. 2020)...............cccccsssccecessseeececeeseessssnerscessceceessscnens 18

Poole v. Florida, 141 S. Ct. 1051 (2021) 20.0... eeeeccssseessnceseneecssneeessseeeeesssaeeeseesesneeenes 4

Rauf v. State, 145 A.3d 430 (Del. 2016)... cece cceeesssecsssseeseeeessesecessaseeeeeessenneeeeseees 17

Ring v. Arizona, 586 U.S. 584 (2002)... eccesccccuscccccccceneesacesecscssseseeceeeecenenees passim

Ritchie v. State, 809 N.E.2d 258 (nnd. 2004)... ..eeecccscccsssecssseeeseeecessssececssssneeteeeseees 17

Roper v. Simmons, 548 U.S. 551 (2005) 0.0... ec ceseeeeeeececeseessessssevecsecsecesseuuuns passim

Sattazahn v. Pennsylvania, 537 U.S. 101 (2008) 2.0... cccsceceseccceesceseceeeeeeecereess 14

State v. Barnett, 598 S.W.3d 127 (Mo. 2020)..............cccccccscccecsessceveuscceecnssceccecesseseeseees 22

State v. Belton, 74 N.E.3d 319 (Olio 2016) ...........cccecccccccssesseeseecessnssscasecccsceneusesaaceees 17

State v. Fry, 126 P.3d 516 (N.M. 2008B)......... cc cecccsssscccecsesssececccessscescsceeeseeareessesaaneess 17

State v. Gales, 658 N.W.2d 604 (Neb. 2008)...............ccccccccssscecescessececcessesceceneceseeseseeees 17

iv

State v. Mason, 108 N.E.3d 56 (Ohio 2018)........... 0... cceccceeceeseccececececececceussecensceceenecees 17

State v. Poole, 297 So. 3d 487 (Fla. 2020)..............cccccccccceesesseenscneccessenenseescansaneeees passim

State v. Tucker, 181 So. 3d 590 (La. 2015) 20.0... ececesssssnssceccceseescccececseseceseeseeeeeceeanaes 21

State v. Whitfield, 107 S.W.3d 253 (Mo. 2008) ..........ccccecccessseeesseesseeeeesseceesssseeeeesenees 17

State v. Wood, 580 S.W.3d 566 (Mo. 2019) ..0....... ccc cccccececesssscesssensecsnseneeesssceucceseccecees 17

Thompson v. State, 153 So. 3d 84 (Ala. Crim. App. 2012)... eeeeseeeeeee 21

Trop v. Dulles, 356 U.S. 86 (1958) 20.0... cccecccccsssccceseecensescsessescessseeecaseseesauauanees 1, 23, 27

Tuilaepa v. California, 512 U.S. 967 (1994)....... ee ceecccsscccscesssseceeececeseeseeenens 6, 7, 14

United States v. Bernard, 762 F.3d 467 (5th Cir. 2014) .......cccccccscccsceseeseeseeeneeenes 20

United States v. Butler, 297 U.S. 1 (1936)... cecceeceeeccssscccsscecsececseeceeeceseeseeees 27, 29

United States v. Gabrion, 719 F.3d 511 (6th Cir. 2018) 0.0... ccceeeessseseeseeeneeeees 17

United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) 20.0.0... cceeeeeeseeseeeeseusees 21

United States v. Tsarnaev, 141 S. Ct. 1683 (2021)... ccc cescceceetseeeessseessseneseesenes 14

United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020) .00..... ee eeeeeeesceeeees 14, 18

Zant v. Stephens, 462 U.S. 862 (1988).............::ccccssscsssecececesssnceeeenecsccseueaseeuuenseneeeaes 6, 16

Other Authorities

28 U.S.C. § L257 oon... ceecccceccesscceseneeeeenecessceeecessescaeeesescecsensecseneecsaeesaneessssneeeessaes 2, 12,17

Douglas E. Abrams, Teaching Legal History in the Age of Practical Legal Education,

53 Am. J. Legal Hist. 482 (2018)... cceccccesseseeceeeeesenseescessesssesssesesseecsuseeessseeseeeeus 26

Edward Gibbon, The History of the Decline and Fall of the Roman Empire (1776-

1789) ..ccccccccsessessessvssesssessucsscssuscsssuecsucsussussuesussessesaessussussavssussasssuessucsasssassussesasensesessess 25

Edward O. Wilson, The Diversity of Life 94 (1992)..........ccccccccessscsecceseseesenssessceeceeneeees 25

J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of

Law and Society and Its Practical Meaning for Democracy, 49 Vand. L. Rev. 1407

John. F. Stinneford, Evolving Away from Evolving Standards of Decency, Federal

Sentencing Reporter, Vol. 23, No. 1, October 2010 ............ cc cecccssseeeeceeceeesseeseeeens 24

Kent Greenawalt, Establishing Religious Ideas: Evolution, Creationism, and

Intelligent Design, 17 Notre Dame J.L. Ethics & Pub. Pol’y 321 (2008)................ 25

Kevin P. Lee, Inherit the Myth: How William Jennings Bryan’s Struggle with Social

Darwinism and Legal Formalism Demythologize the Scopes Monkey Trial, 33

Cap. U. L. Rev. 347 (2004)... cccccccccsssssseccssecccccecesnesssssecceseeeeceecscceeseueeaeaeerseseuaes 25

Raymond B. Marcin, God’s Littlest Children and the Right to Live: The Case for a

Positivist Pro-Life Overturning of Roe, 25 J, Contemp. Health L. & Pol’y 38 (2008)

Robert J. D’Agostino, Selman and Kitzmiller and the Imposition of Darwinian

Orthodoxy, 10 B.Y.U. Educ. & Lid. 1 (2010) ......cc cece cecceecccecesesssesseeeceeseessssnsecseseees 24

Stephen Jay Gould, Ever Since Darwin: Reflections in Natural History 24 (1977) ..25

Sup. Ct. R. 10... ccccccccccseccceeeeeeceesssssesseseececeecasaeeeeeeeeceesssssnccseasaccsceeereeeesensenes passim

Thomas Earl Geu, A Single Theory of Limited Liability Companies: An Evolutionary

Analysis, 42 Suffolk U. L. Rev. 507 (2009) ................ccccssessesscsesseveesceeecceneeseuseeseeenaes 25

William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany

vi

NO. 21-6429

IN THE SUPREME COURT OF THE UNITED STATES

RANDALL T. DEVINEY,

Petitioner,

V.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

Petitioner challenges the decision by the Supreme Court of Florida affirming

his sentence of death; that decision appears as Deviney v. State, 322 So. 3d 5638 (Fla.

2021).

JURISDICTION

This Court’s jurisdiction to review the final judgment of the Supreme Court of

Florida is permissible under 28 U.S.C. § 1257. However, this Court should decline to

exercise jurisdiction in this case because the Florida Supreme Court’s decision does

not implicate an important or unsettled question of federal law, does not conflict with

another state court of last resort or a court of appeal of the United States, and does

not conflict with relevant decisions of this Court. Sup. Ct. R. 10. In short, no

compelling reasons exist to grant a writ of certiorari in this case. Sup. Ct. R. 10.

STATEMENT OF THE CASE AND FACTS

On August 5, 2008, Petitioner murdered Dolores Futrell, a sixty-five-year-old

woman who suffered from multiple sclerosis, at her home in Jacksonville, Florida.

Deviney, 322 So. 3d at 566; see also id. at 574. Petitioner was “almost nineteen years

old at the time of the murder.” Jd. at 573.

Upon resentencing in the wake of Hurst v. Florida, 577 U.S. 92 (2016), a jury

in 2017 “unanimously found three aggravators beyond a reasonable doubt”: (1) the

murder was committed while Petitioner was engaged in the commission of a burglary,

an attempt to commit a burglary, or an attempt to commit a sexual battery; (2) the

murder was especially heinous, atrocious, or cruel (HAC); and the victim was a

particularly vulnerable victim (PVV) due to advanced age or disability. Next, the jury

“unanimously found the aggravators were sufficient to impose the death penalty [and

unanimously found that] those aggravators outweighed the mitigation it found.”

Deviney, 322 So. 3d at 569. Then, the jury “returned a... verdict recommending that

[Petitioner] be sentenced to death.” Jd. Ultimately, the trial court “sentenced

[Petitioner] to death.” Id.

On direct appeal to the Supreme Court of Florida, Petitioner raised two issues

relevant here: (1) Petitioner argued “that the trial court erred by failing to instruct

the jury that it must determine beyond a reasonable doubt whether the aggravators

were sufficient to impose death and whether those aggravators outweighed the

”

mitigators .. .”; and (2) Petitioner argued that this Court’s decision in Roper uv.

Simmons, 543 U.S. 551 (2005) (Roper), “should be expanded to individuals under the

age of twenty-one at the time they committed their murders” because “there is an

emerging national consensus against imposing death on individuals under the age of

twenty-one at the time of their offenses.” Deviney, 322 So. 3d at 572-73. The Court

rejected Petitioner’s arguments and affirmed. Id. at 577.

REASON FOR DENYING THE WRIT

Question One

Petitioner’s Death Sentence Does Not Violate

the Due Process Clause of the Fourteenth Amendment

I. Summary

The capital sentencing process that produced a death sentence in Petitioner's

case does not violate the Fourteenth Amendment nor conflict with any precedent from

this Court; therefore, this Court need not address the question presented.

Under Florida law, a capital defendant is eligible to receive a sentence of death

once the jury finds the existence of at least one aggravating factor beyond a

reasonable doubt. See Fla. Stat. § 921.141(2)(b)2.; see also State v. Poole, 297 So. 3d

487, 502-03 (Fla. 2020), cert. dented, Poole v. Florida, 141 S. Ct. 1051 (2021). That

finding: increases the maximum authorized sentence from life imprisonment to

death; concludes the eligibility phase of the capital sentencing process; and, signals

the beginning of the selection phase — where the judge and jury share a role in the

determination of an appropriate sentence. Because the subjective weighing of the

aggravating factors and mitigating circumstances involves the exercise of mercy, not

the finding of a fact required for death sentence eligibility, the jury’s participation in

the selection phase does not transform the consideration of those factors into the

functional equivalents of elements. Whether considered by the judge, the jury, or

both (as in Florida), the subjective weighing of aggravating factors and mitigating

circumstances remains part of the selection phase. Thus, no Due Process violation

occurred.

II. Florida Law

Eligibility Phase

Under Florida law, a capital defendant is eligible to receive the death penalty

once the jury unanimously finds at least one aggravating factor beyond a reasonable

doubt. See Fla. Stat. § 921.141(2)(b)2. (‘If the jury . . . [uJnanimously finds at least

one aggravating factor, [then] the defendant is eligible for a sentence of death. . . .”);

see also Poole, 297 So. 3d at 502-03 (“Under longstanding Florida law, there is only

one eligibility finding required: the existence of one or more statutory aggravating

circumstances.”); see generally McKinney v. Arizona, 140 S. Ct. 702, 707 (2020)

(“Under Ring [v. Arizona, 536 U.S. 584 (2002),] and Hurst[ v. Florida, 577 U.S. 92

(2016)], a jury must find the aggravating circumstance that makes the defendant

death eligible.”).

By finding the existence of an aggravating factor beyond a reasonable doubt,

the jury necessarily determines that each aggravating factor found is “sufficient” to

warrant a death sentence. See § 921.141(2)(b)2.a. (“Whether sufficient aggravating

factors exist.”); see also Poole, 297 So. 3d at 502 (“[O]ur Court was wrong in Hurst v.

State[, 202 So. 3d 40 (Fla. 2016),] when it held that the existence of an aggravator

and the sufficiency of an aggravator are two separate findings, each of which the jury

must find unanimously.”). For the purposes of the § 921.141(2)(b)2.a. determination,

“sufficient” simply means “one or more.” Poole, 297 So. 3d at 502, quoting Miller v.

State, 42 So. 3d 204, 219 (Fla. 2010) (“sufficient aggravating circumstances” means

“one or more such circumstances’).

Selection Phase

The finding of at least one aggravating factor concludes the jury’s role in the

sentence eligibility phase — but not its role in the overall sentencing process; if the

jury unanimously finds at least one aggravating factor beyond a reasonable doubt,

the jury then proceeds to the sentence selection phase where it must evaluate the

weight of the aggravating factors and mitigating circumstances. See Poole, 297 So.

3d at 502 (identifying the weighing of aggravating factors and mitigating

circumstances as the “selection finding”); see generally Tuilaepa v. California, 512

U.S. 967, 971 (1994) (“Our capital punishment cases under the Eighth Amendment

address two different aspects of the capital decision-making process: the eligibility

decision and the selection decision.”).

In performing its role during the selection phase, the jury must weigh two

considerations: (1) “[w]hether aggravating factors exist which outweigh the

mitigating circumstances found to exist”; and (2) “whether the defendant should be

sentenced to life imprisonment without the possibility of parole or to death.” Fla.

Stat. § 921.141(2)(b)2.b.-c.; see generally Tuilaepa, 512 U.S. at 972, quoting Zant v.

Stephens, 462 U.S. 862, 879 (1983) (In order for a defendant to receive the death

penalty at the conclusion of the selection phase, the sentencer must make an

“individualized determination,” with that determination based upon a consideration

of “relevant mitigating evidence of the character and record of the defendant and the

circumstances of the crime.”) (emphasis omitted).

After weighing those considerations, the jury must recommend to the trial

court either “a sentence of death” or “a sentence of life imprisonment without the

possibility of parole.” Fla. Stat. § 921.141(2)(c). If the jury recommends death, then

the trial court may impose either death or life imprisonment without the possibility

of parole. Fla. Stat. § 921.141(8)(a)2. If, however, the jury recommends a sentence

of life without the possibility of parole, then the trial court can only impose a life

sentence. Fla. Stat. § 921.141(3)(a)1.

III. Petitioner’s Claim

Petitioner asks this Court to address whether, for death sentence eligibility,

the Due Process Clause of the Fourteenth Amendment requires Florida juries in

capital cases to find beyond a reasonable doubt not just the existence of at least one

aggravating factor but also that: the aggravating factors are sufficient to warrant

the death penalty; and the aggravating factors outweigh the mitigating

circumstances. See Petition, p. 1:

Under Florida’s capital sentencing scheme, in addition to finding at least

one aggravating factor exists, the factfinder must make additional

determinations before a capital sentence can be imposed: (1) whether

“sufficient aggravating factors exist,” and (2) whether “aggravating

factors exist which outweigh the mitigating circumstances.” The first

question presented in this case is whether, considering the operation

and effect of Florida’s capital sentencing scheme, the Due Process

Clause requires these additional determinations to be made beyond a

reasonable doubt.

Petitioner essentially argues that the Florida Legislature unknowingly created

additional “elements” for death sentence eligibility beyond that required by the

Eighth Amendment. See Petition, p. 15:

[In response to Hurst v. Florida, the] Florida Legislature rewrote the

state’s capital sentencing scheme [which now] requires not only a

finding regarding the presence of aggravating circumstances, but also a

finding about their sufficiency and their weight relative to any

mitigating circumstances, before the sentencer can choose between a life

and death sentence.

See generally Tuilaepa, 512 U.S. at 971-72 (“To render a defendant eligible for the

death penalty in a homicide case, we have indicated that the trier of fact must convict

the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent)

at either the guilt or penalty phase.”).

Even though the Florida Legislature expressly stated that the finding of one

aggravating factor is all that is required for death sentence eligibility, see Fla. Stat. §

921.141(2)(b)2., Petitioner nevertheless claims that a defendant convicted of firstdegree murder in Florida is ineligible to receive a death sentence unless the jury: (1)

unanimously finds beyond a reasonable doubt the existence of at least one

aggravating factor; (2) unanimously finds beyond a reasonable doubt that any

established aggravating factors are sufficient to justify the death penalty; (38)

unanimously finds beyond a reasonable doubt that the aggravating factors outweigh

the mitigating circumstances; and (4) unanimously recommends death.! See Petition,

p. 12:

[Florida’s] scheme requires the jury to make a recommendation of either

death or life imprisonment based on three determinations: that at least

one aggravating factor exists; that the aggravating factor or factors are

sufficient in themselves; and, that the aggravating factor or factors

outweigh the mitigating circumstances. Until each of these

determinations is made .. . the defendant is not eligible for the death

penalty.

See also Hurst v. State, 202 So. 3d at 57:

[Blefore the trial judge may consider imposing a sentence of death, the

jury in a capital case must unanimously and expressly find all the

aggravating factors that were proven beyond a reasonable doubt,

unanimously find that the aggravating factors are sufficient to impose

death, unanimously find that the aggravating factors outweigh the

mitigating circumstances, and unanimously recommend a sentence of

death.

1 Although Petitioner only argues the first three, the fourth represents their

culmination. See § 921.141(2)(b)2. (“The recommendation shall be based on a

weighing of all of the following. . . .”).

Receded from in Poole, 297 So. 3d at 491 (“As for the sentencing issue, we agree with

the State that we must recede from Hurst v. State except to the extent that it held

that a jury must unanimously find the existence of a statutory aggravating

circumstance beyond a reasonable doubt.”).

Highlighting that a trial court in Florida cannot impose a death sentence

unless all of the section 921.141(2)(b) steps are satisfied, Petitioner argues that the

eligibility process is not complete simply because the jury unanimously finds an

aggravating factor beyond a reasonable doubt; rather, Petitioner claims that the

eligibility phase concludes only after the jury determines beyond a reasonable doubt

whether the aggravating factors are sufficient and whether the aggravating factors

outweigh the mitigating circumstances. See Petition, p. 13:

[T]he determinations regarding the presence of aggravating

circumstances, sufficiency of aggravating circumstances, and whether

the aggravating circumstances outweigh any mitigation presented

necessarily precede the selection of a death sentence. In other words,

those determinations are eligibility determinations: they must be made

before the defendant can be subjected to the imposition of a sentence

exceeding the statutory maximum of life without parole for first[-]degree

murder.

More specifically, Petitioner claims that the eligibility phase ends once the jury

concludes its responsibilities under subsections 921.141(2)(b)2.a. (sufficiency) and

921.141(2)(b)2.b. (weighing), not the first sentence of 921.141(2)(b)2. (finding at least

one aggravating factor). See Petition, p. 10:

Under Florida’s capital sentencing scheme, the determinations that the

aggravating factors are sufficient to justify imposing death and that they

outweigh the mitigating circumstances are the functional equivalent of

elements because these determinations expose a defendant to a greater

punishment than that authorized by statute for capital murder.

(Emphasis added).

By arguing that a jury’s role in determining sentence eligibility extends beyond

factfinding and continues into the subjective consideration of aggravating factors and

mitigating circumstances, Petitioner claims that the jury’s consideration of those

factors takes place during the eligibility phase, not the selection phase of Florida’s

capital sentencing process. Under Petitioner’s view, the jury subjectively considers a

set of aggravating factors and mitigating circumstances during the eligibility phase,

but the trial court subjectively considers those same factors and considerations (and

potentially even more mitigation) during the selection phase.

Ultimately, Petitioner argues that the jury’s § 921.141(2)(b)2.a. and (2)(b)2.b.

determinations are what establish the maximum authorized sentence under Florida

law. See Petition, p. 22:

A determination that increases the available penalty from life to death

exposes the defendant to a greater punishment than his conviction for

the underlying crime, and thus must be proved beyond a reasonable

doubt. Under the current statute, that includes the factual finding that

the aggravating factors are sufficient to justify death — a separate

question from whether they are present at all — and the factual finding

that they outweigh the mitigating evidence.

The following table illustrates where the Florida Legislature and Supreme

Court of Florida place the various § 921.141(2) considerations as well as where

Petitioner seeks to place them:

10

Statutory

Section

Consideration

Where Florida

places the

consideration

Where

Petitioner seeks

to place the

consideration

§ 921.141(2)(b)2.

“at least one

aggravating

factor”

Eligibility phase

Eligibility phase

§ 921.141(2)(b)2.a.

“whether sufficient

aggravating

factors exist”

Eligibility phase

Eligibility phase

§ 921.141(2)(b)2.b.

“whether

aggravating

factors exist which

outweigh the

mitigating

circumstances

found to exist”

Selection phase

Eligibility phase

§ 921.141(2)(b).c.

“whether the

defendant should

be sentenced to life

imprisonment

without the

possibility of

parole or to death”

Selection phase

Eligibility phase

IV. Analysis

Question of State Law

Petitioner does not argue that the constitution necessarily requires that a jury

weigh aggravating factors and mitigating circumstances during the eligibility phase

of the capital sentencing process or that the constitution necessarily requires that a

jury find such weighing beyond a reasonable doubt. Rather, Petitioner argues that

the Florida Legislature placed the weighing of aggravating factors and mitigating

circumstances in the eligibility phase instead of the selection phase, thereby

transforming the consideration of those factors into elements of the offense that must

be found unanimously by the jury beyond a reasonable doubt.

11

-Fatal to Petitioner’s argument, however, the Florida Legislature and the

Supreme Court of Florida have stated unequivocally that the eligibility phase ends

once the jury finds at least one aggravating factor. See Fla. Stat. § 921.141(2)(b)2.;

see also Poole, 297 So. 3d at 502-03. And with its decision in Poole, the Supreme Court

of Florida expressly rejected any claim that the weighing of aggravating factors and

mitigating circumstances takes place during the eligibility phase. See Poole, 297 So.

3d at 502-04 (interpreting a previous version of the statute and rejecting defendant’s

“suggestion” that sufficiency and weighing are elements of the offense). Therefore, to

the extent Petitioner raises a question of state law regarding the elements of an

offense, this Court lacks jurisdiction and the petition should be denied. See Foster v.

Chatman, 136 S. Ct. 1737, 1759 (2016).

No Conflict with this Court’s Decisions

Petitioner appears to rely on 28 U.S.C. § 1257 as a basis for invoking this

Court’s jurisdiction, arguing that the decision by the Supreme Court of Florida below

conflicts with this Court’s decisions in Alleyne v. United States, 570 U.S. 99 (2013),

Apprendi v. New Jersey, 530 U.S. 466 (2000), Hurst v. Florida, and Ring. See Petition,

p. 19 (“In holding that the determinations that are currently required before Florida

defendants can be subjected to a death penalty are not elements (or functional

equivalent of elements) requiring a verdict based on proof beyond a reasonable doubt,

Florida law directly conflicts with this Court’s opinions in Apprendi, Ring, Alleyne,

and Hurst v. Florida.”).

12

However, no such conflict exists. Apprendi, Ring, and Alleyne all deal with

facts that increase the maximum authorized sentence — not subjective

determinations involving questions of mercy. See Apprendi, 530 U.S. at 490 (‘Other

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”); see also Ring, 536 U.S. at 589 (“Capital defendants, no

less than noncapital defendants, we conclude, are entitled to a jury determination of

any fact on which the legislature conditions an increase in their maximum

punishment.”); Alleyne, 570 U.S. at 103 (“[A]ny fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.”).

To the extent Petitioner argues that Hurst categorizes the weighing of

aggravating factors and mitigating circumstances as factfinding under Florida’s

capital sentencing scheme, see Hurst, 577 U.S. at 99-100, this Court’s subsequent

decisions in Kansas v. Carr, 577 U.S. 108 (2016), and McKinney eliminated any

possible confusion regarding the factfinding required for death penalty eligibility: a

capital defendant becomes eligible to receive a death sentence when the trier of fact

makes an objective, factual determination that at least one aggravating factor exists

beyond a reasonable doubt. See Carr, 577 U.S. at 119 (identifying the aggravatingfactor determination as the so-called “eligibility phase,” which involves a purely

factual determination); see also McKinney, 140 S. Ct. at 707 (“[A] jury must find the

aggravating circumstance that makes the defendant death eligible.”); United States

13

v. Tsarnaev, 968 F.3d 24, 89 (1st Cir. 2020), cert. granted, 141 S. Ct. 1683, 209 L. Ed.

2d 463 (2021):

[I]f the Supreme Court in Hurst intended to impose the reasonabledoubt standard on the weighing process — as Dzhokhar argues — the

Court in Carr would not have said days later that telling the jury to use

that standard “would mean nothing.”

McKinney helps sink Dzhokhar’s claim that Hurst requires the jury to

make the weighing determination beyond a reasonable doubt — a view

we hold because McKinney makes crystal clear Hurst addressed only the

finding of aggravating facts and had nothing to do with the weighing

process.

Quite clearly, Carr and McKinney confirmed the continued viability of

decisions from this Court holding that the finding of at least one aggravating factor

beyond a reasonable doubt is all that is required for a defendant convicted of murder

to be eligible for a sentence of death. See, e.g., Sattazahn v. Pennsylvania, 537 U.S.

101, 111 (2008):

[FJor purposes of the Sixth Amendment’s jury-trial guarantee, the

underlying offense of “murder” is a distinct, lesser included offense of

“murder plus one or more aggravating circumstances”: Whereas the

former exposes a defendant to a maximum penalty of life imprisonment,

the latter increases the maximum permissible sentence to death.

In doing so, Carr and McKinney also confirmed the continued viability of both

§ 921.141(2)(b)2 and Poole. Compare Tuilaepa, 512 U.S. at 971-72 (“To render a

defendant eligible for the death penalty in a homicide case, we have indicated that

the trier of fact must convict the defendant of murder and find one ‘aggravating

circumstance’ (or its equivalent) at either the guilt or penalty phase.”), with §

921.141(2)(b)2. (“If the jury . . . [ujnanimously finds at least one aggravating factor,

14

[then] the defendant is eligible for a sentence of death. .. .”), and with Poole, 297 So.

3d at 502-03 (“Under longstanding Florida law, there is only one eligibility finding

required: the existence of one or more statutory aggravating circumstances.”).

Furthermore, McKinney clearly holds that the jury is not constitutionally

required to weigh the aggravating factors and mitigating circumstances during any

phase of the capital sentencing process; the judge alone can conduct that subjective

analysis. See McKinney, 140 S. Ct. at 707 (“[I]n a capital sentencing proceeding just

as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not

constitutionally required to weight the aggravating and mitigating circumstances or

to make the ultimate sentencing decision within the relevant sentencing range.”).

If McKinney recognizes that the jury need not participate in the selection

phase, then it stands to follow that the trier of fact’s participation in that phase does

not automatically transform subjective considerations of aggravating factors and

mitigating circumstances into the functional equivalents of elements. Once the

finding of at least one aggravating factor has established the maximum authorized

sentence in the eligibility phase, any subsequent determinations during the selection

phase simply represent the exercise of sentencing discretion. See Apprendi, 530 U.S.

at 481 (“We should be clear that nothing in this history suggests that it is

impermissible for judges to exercise discretion — taking into consideration various

factors relating both to offense and offender — in imposing a judgment within the

range prescribed by statute.”) (emphasis in original); see also Alleyne, 570 U.S. at 116

(“Our ruling today does not mean that any fact that influences judicial discretion

15

must be found by a jury. We have long recognized that broad sentencing discretion,

informed by judicial factfinding, does not violate the Sixth Amendment.”).

Regardless of whether the capital sentencer is the judge, the jury, or a

combination of both, the weighing of aggravating factors and mitigating

circumstances involves a subjective question of mercy that by definition takes place

during the selection phase. See generally Carr, 577 U.S. at 119 (“And of course the

ultimate question whether mitigating circumstances outweigh aggravating

circumstances is mostly a question of mercy — the quality of which, as we know, is

not strained.”); see also Caldwell v. Mississippi, 472 U.S. 320, 340 n.7 (1985), quoting

Zant v. Stephens, 462 U.S. at 900 (Rehnquist, J., concurring in judgment) (“[I]n one

crucial sphere of a system of capital punishment, the capital sentencer comes very

near to being ‘solely responsible for [the defendant’s] sentence,’ and that is when it

makes the often highly subjective, ‘unique, individualized judgment regarding the

”»

punishment that a particular person deserves.”) (emphasis omitted). Put simply,

what happens in the selection phase stays in the selection phase.

As the foregoing demonstrates, the decision by the Supreme Court of Florida

did not conflict with this Court’s decisions in Alleyne, Apprendi, Hurst, or Ring. In

Petitioner's case, the lower court correctly held that the jury’ weighing of

aggravating factors and mitigating circumstances — even in Florida — is not an

element subject to the beyond a reasonable doubt standard of proof. See Allen v.

State, 322 So. 3d 589, 603 (Fla. 2021), citing Newberry v. State, 288 So. 3d 1040, 1047

(Fla. 2019). Because Florida law clearly and correctly indicates that the eligibility

16

phase ends once the jury finds the existence of at least one aggravating factor beyond

a reasonable doubt, no basis for conflict jurisdiction under 28 U.S.C. § 1257(a) exists.

No Unsettled Question or Conflict Among the Lower Courts

There is also no meaningful conflict with any other state or federal appellate

court.2 Even before McKinney, “[nJearly every court that [had] considered the issue

[had] held that the Sixth Amendment is applicable to only the fact-bound eligibility

decision concerning an offender’s guilt of the principal offense and any aggravating

circumstances.” State v. Mason, 108 N.E.3d 56, 64 (Ohio 2018) (citing cases).3

Similarly, “[e]very [federal] circuit” that had addressed the argument that Apprendi

requires jury weighing of aggravators and mitigators had “rejected” that claim.

United States v. Gabrion, 719 F.3d 511, 532-33 (6th Cir. 2013) (en banc) (joining six

other federal courts of appeals).

In light of McKinney, it is now “crystal clear [that] Hurst addressed only the

finding of aggravating facts and had nothing to do with the weighing process.”

2 The lone outlier on this question is Rauf v. State, 145 A.38d 480 (Del. 2016), which

was decided four years before this Court’s decision in McKinney. Quite clearly,

McKinney illustrates that Rauf misapprehended the requirements of the

constitution. See McKinney, 140 S. Ct. at 708 (‘In short, Ring and Hurst did. not

require jury weighing of aggravating and mitigating circumstances, and Ring and

Hurst did not overrule Clemons [v. Mississippi, 494 U.S. 738 (1990),] so as to prohibit

appellate reweighing of aggravating and mitigating circumstances.”).

3 See State v. Wood, 580 S.W.3d 566, 582-88 (Mo. 2019) (correcting State v. Whitfield,

107 S.W.3d 253 (Mo. 2003)); Evans v. State, 226 So. 3d 1, 38-39 (Miss. 2017); Ex Parte

Alabama, 223 So. 3d 954, 966 (Ala. Crim. App. 2016); State v. Belton, 74 N.E.3d 319,

337 (Ohio 2016); Nunnery v. State, 263 P.3d 235, 250-51 (Nev. 2011); State v. Fry, 126

P.3d 516, 534 (N.M. 2005); Commonwealth v. Roney, 866 A.2d 351, 361 (Pa. 2005);

Ritchie v. State, 809 N.E.2d 258, 268 (Ind. 2004); Oken v. State, 835 A.2d 1105, 1147

(Md. Ct. App. 2003); State v. Gales, 658 N.W.2d 604, 626 (Neb. 2008).

17

Tsarnaev, 968 F.3d at 89 (explaining that “McKinney helps sink Dzhokhar’s claim

that Hurst requires the jury to make the weighing determination beyond a reasonable

doubt”); see also People v. Suarez, 471 P.3d 509, 565 (Cal. 2020) (quoting McKinney

for the proposition that Hurst “did not require jury weighing of aggravating and

mitigating circumstances”). Accordingly, it does not appear that any court has held,

post-McKinney, that the Sixth Amendment requires jury weighing of aggravators and

mitigators, even if the pertinent sentencing statute provides that a sentence of death

may not be imposed unless the sentencing authority determines that aggravators

outweigh mitigators.

V. Conclusion

Petitioner fails to establish that the Florida Supreme Court’s decision conflicts

with relevant decisions of this Court, conflicts with another state court of last resort

or a court of appeal of the United States, or implicates an important or unsettled

question of federal law.

18

Question Two

Petitioner’s Death Sentence

Does Not Violate the Eighth Amendment

I. Petitioner’s claim

Petitioner relies exclusively on a public policy argument to claim that his death

sentence violates the Eighth Amendment. See Petition, p. 29:

This Court should reconsider the bright line allowing 18-year-olds to be

executed. A decreasing number of states are responsible for most of the

executions of those who had reached the age of 18 but were not over 21

when they offended. A majority of states no longer execute these

offenders because of what science tells us about brain development.

With this claim, Petitioner essentially seeks an “update” to the Eighth Amendment

that would retroactively prohibit his sentence. See generally Roper, 543 U.S. at 630

(Scalia, J., dissenting).

II. Analysis

Petitioner fails to argue that the lower court’s decision: conflicts with any

decision from this Court, another state court of last resort, or a court of appeal of the

United States; or implicates an unsettled question of federal law. Petitioner only

asserts that his death sentence implicates an important question of federal law —

i.e., whether the Eighth Amendment should bar a death sentence for a new class of

defendants (those under 21 at the time of the murder).

No Conflict with this Court’s Decisions

The decision of the Supreme Court of Florida does not conflict with any decision

by this Court. See Sup. Ct. R. 10(c) (listing conflict with this Court as a consideration

in the decision whether to grant review). Petitioner was “almost nineteen years old

19

at the time of the murder.” Deviney, 322 So. 3d at 573. Under this Court’s existing

precedent, the Eighth Amendment prohibits the imposition of a death sentence on

minors — not those, like Petitioner, who attained the age of majority before

committing the offense that gave rise to the sentence at issue. See Roper, 543 U.S. at

578 (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty

on offenders who were under the age of 18 when their crimes were committed.”); cf.

Graham v. Florida, 560 U.S. 48, 74-75 (2010), citing Roper, 543 U.S. at 574 (“Because

‘[t]he age of 18 is the point where society draws the line for many purposes between

childhood and adulthood,’ those who were below that age when the offense was

committed may not be sentenced to life without parole for a nonhomicide crime.”); cf.

also Miller v. Alabama, 567 U.S. 460, 465 (2012) (“We therefore hold that mandatory

life without parole for those under the age of 18 at the time of their crimes violates

the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.”). Thus,

there is no conflict between the lower court’s decision and this Court’s caselaw.

No Conflict with any Federal Appellate Court

The decision of the Supreme Court of Florida does not conflict with any decision

by a federal appellate court. See Sup. Ct. R. 10(b) (listing conflict with a federal

appellate court as a consideration in the decision whether to grant review). It appears

that all of the federal appellate courts that have reached the issue of expanding Roper

have declined the invitation to do so. See, e.g., United States v. Bernard, 762 F.3d

467, 482 (5th Cir. 2014) (denying certificate of appealability (COA) on a claim seeking

to extend Roper to “mental age” in a case where the defendant was 19 years old when

20

he committed the murder, citing Parr v. Quaterman, 472 F.3d 245, 261 (5th Cir.

2006)); see also In re Garner, 612 F.3d 533, 535-36 (6th Cir. 2010) (denying permission

to file a successive habeas petition seeking to extend Roper to a defendant who was

19 years old at the time of the murder but argued “he had a developmental or ‘mental

age’ of less than 18 at the time he committed his crimes”); United States v. Mitchell,

502 F.3d 931, 981 (9th Cir. 2007) (denying defendant’s claim “that it would violate

the Eighth Amendment to sentence him to death because of his age and maturity

level (he was 20 at the time of the offenses)”); Melton v. Sec’y, Fla. Dep’t of Corr., 778

F.3d 1234, 1237 (11th Cir. 2015) (denying a COA on a claim seeking to extend Roper

to a defendant who committed the murder when he was 18 years old but committed

the crimes used as an aggravator when he was under 18 years old). Thus, there

appears to be no conflict between the lower court’s decision and decisions of federal

appellate courts.

No Conflict with any State Court of Last Resort

The decision of the Supreme Court of Florida does not conflict with any decision

by a state court of last resort. See Sup. Ct. R. 10(b) (listing conflict with a state court

of last resort as a consideration in the decision whether to grant review). Like the

federal appellate courts, it appears that all of the state courts of last resort have

rejected an invitation to expand Roper. See, e.g., Thompson v. State, 153 So. 3d 84,

177 (Ala. Crim. App. 2012) (refusing to extend Roper to an 18-year-old defendant who

was “traumatized, abused, and mentally ill”); see also State v. Tucker, 181 So. 3d 590,

627 (La. 2015) (refusing to extend Roper to a defendant who argued “he was barely

21.

over the age of 18 and his IQ is 74”); Mitchell v. State, 235 P.3d 640, 659 (Okla. Crim.

App. 2010) (refusing to extend Roper to a defendant who was “two weeks beyond his

eighteenth birthday at the time of the murder”). Thus, there appears to be no conflict

between the lower court’s decision and decisions of other State courts of last resort.

Nevertheless, Petitioner relies on Commonwealth v. Bredhold, No. 14-CR-161,

2017 WL 8792559 (Ky. Cir. Ct. 7th Div. Aug. 01, 2017), for support. See Petition, pp.

24-27; see also Commonwealth v. Bredhold, 2017 WL 8792559, at *6 (“Kentucky’s

death penalty statute is unconstitutional insofar as it permits capital punishment for

offenders under twenty-one (21) at the time of their offense.”). However, that reliance

is misplaced for two reasons. First, the ruling in that case is from a state trial court,

not a state court of last resort. Therefore, Sup. Ct. R. 10(b) does not support a grant

of review. Second, “the Kentucky Supreme Court recently held [that the Roper] issue

[in the Bredhold trial] was not justiciable because the defendant had not been

sentenced yet.” State v. Barnett, 598 S.W.3d 127, 131 n.38 (Mo. 2020), citing

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020), cert. denied sub nom. Diaz

v. Kentucky, 141 S. Ct. 1233 (2021). As a result of that non-justiciability finding, the

Kentucky Supreme Court vacated the trial court’s order. See Commonwealth v.

Bredhold, 599 S.W.3d at 423. Thus, the vacated trial court order in Bredhold offers

no support here.

Wrong Forum for a Public Policy Debate

Despite a lack of any conflict, Petitioner argues that this Court should accept

review because the decision by the Supreme Court of Florida implicates an important

22

question of federal law: whether a death sentence imposed on a defendant who was

18 when he committed the offense violates our national standards of decency.

However, this Court is an inappropriate forum for such a public policy debate. See

Trop v. Dulles, 356 U.S. 86, 120 (1958) (Frankfurter, J., dissenting):

[I]t is not the business of this Court to pronounce policy. It must observe

a fastidious regard for limitations on its own power, and this precludes

the Court’s giving effect to its own notions of what is wise or politic. That

self-restraint is of the essence in the observance of the judicial oath, for

the Constitution has not authorized the judges to sit in judgment on the

wisdom of what Congress and the Executive Branch do.

See also Coker v. Georgia, 433 U.S. 584, 604 (1977) (Burger, C.J., dissenting); Baze v.

Rees, 553 U.S. 35, 93 (2008) (Scalia, J., concurring).

To the extent this Court wishes to engage in such a debate, the “evolving

standards of decency” — which has proven “problematic from the start” — should be

discarded. See Miller, 567 U.S. at 510 (Alito, J., dissenting), quoting Trop, 356 U.S.

at 101:

The Court long ago abandoned the original meaning of the Eighth

Amendment, holding instead that the prohibition of “cruel and unusual

punishment” embodies the “evolving standards of decency that mark the

progress of a maturing society.” Both the provenance and philosophical

basis for this standard were problematic from the start. (Is it true that

our society is inexorably evolving in the direction of greater and greater

decency? Who says so, and how did this particular philosophy of history

find its way into our fundamental law? And in any event, aren't elected

representatives more likely than unaccountable judges to reflect

changing societal standards?)

(Citations omitted).

As noted by Justice Alito, the test mistakenly presumes that society evolves

into a better version of itself with each passing generation. See Miller, 567 U.S. at

23

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