Amicus Curiae Brief — Rodney Renia Young, Petitioner v. Georgia

No. 21-782

IN THE

Supreme Court of the United States

________________

RODNEY RENIA YOUNG,

Petitioner,

v.

THE STATE OF GEORGIA,

________________

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF GEORGIA

________________

BRIEF OF CHARLES FRIED AND SETH P.

WAXMAN AS AMICI CURIAE IN SUPPORT OF

PETITIONER

________________

Robert M. Loeb

Jonas Q. Wang

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street N.W.

Washington, D.C. 20005

(202) 339-8475

Rachel G. Shalev

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5033

rshalev@orrick.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 1

ARGUMENT ............................................................. 3

I.

Georgia’s Beyond-A-Reasonable-Doubt

Standard Violates The Fundamental

Principle That The Risk Of A Wrongful

Execution Cannot Fall Entirely On The

Individual............................................................ 4

II. Georgia’s Beyond-A-Reasonable-Doubt

Standard Is Irreconcilable With Atkins

And Its Progeny. ................................................. 7

A. Georgia’s rule is at least as

unconstitutional as the rules in Hall

and Moore I.................................................... 8

B. Georgia’s rule is worse than the rules

in Hall and Moore I. .................................... 11

C. Georgia’s rule is more amenable to

correction than the rules in Hall and

Moore I. ........................................................ 13

III. Georgia’s Outlier Approach Threatens The

Rule Of Law In Ways Only This Court

Can Remedy. ..................................................... 15

A. Georgia’s rule undermines the rule of

law…... ......................................................... 15

ii

B. Georgia will not change course absent

intervention by this Court. ......................... 19

CONCLUSION ........................................................ 20

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Addington v. Texas,

441 U.S. 418 (1979) ......................................4, 5, 19

Atkins v. Virginia,

536 U.S. 304 (2002) .......... 3, 7, 9, 13, 15, 17, 18, 19

Bailey v. Alabama,

219 U.S. 219 (1911) ..............................................17

Beck v. Alabama,

447 U.S. 625 (1980) ................................................6

California v. Brown,

479 U.S. 538 (1987) ..............................................17

Cooper v. Oklahoma,

517 U.S. 348 (1996) .................................... 6, 14, 17

Ford v. Wainwright,

477 U.S. 399 (1986) ..............................................18

Hall v. Florida,

572 U.S. 701 (2014) .................. 2, 5, 7, 8, 11, 13, 17

Head v. Hill,

587 S.E.2d 613 (2003) ..........................................19

Hill v. Humphrey,

662 F.3d 1335 (11th Cir. 2011) .....................12, 19

iv

Lockett v. Ohio,

438 U.S. 586 (1978) ................................................5

Moore v. Texas,

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

Moore v. Texas,

139 S. Ct. 666 (2019).............................. 8, 9, 10, 15

Oregon v. Ice,

555 U.S. 160 (2009) ..............................................18

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)..........................................15

Raulerson v. Warden,

928 F.3d 987 (11th Cir. 2019) .......................13, 19

Richmond Screw Anchor Co. v. United

States,

275 U.S. 331 (1928) ..............................................16

Roper v. Simmons,

543 U.S. 551 (2005) ..............................................13

Santosky v. Kramer,

455 U.S. 745 (1982) ..........................................5, 14

United States v. Martinez-Cruz,

736 F.3d 999 (D.C. Cir. 2013) ..............................16

In re Winship,

397 U.S. 358 (1970) .................................... 6, 14, 17

Woodby v. INS,

385 U.S. 276 (1966) ..............................................14

v

Statutes

Ga. Code Ann. § 17-7-131(j) ........................................6

Other Authorities

Alan Binder, Georgia Executes Warren

Lee Hill for Murder, N.Y. Times

(Jan. 27, 2015),

https://tinyurl.com/ycxw53ms .............................12

Application for Intellectual/Developmental Disabilities Services, Ga.

Dep’t of Behav. Health & Dev.

Disabilities,

https://tinyurl.com/54a43tvf (last

visited Dec. 21, 2021) ............................................4

Daniel Epps, The Consequences of Error

in Criminal Justice, 128 Harv. L.

Rev. 1065 (2015) ....................................................5

Death Penalty Info. Ctr., Executions By

State and Region Since 1976,

https://tinyurl.com/2p8sejvd (last

visited Dec. 21, 2021) ...........................................18

Ga. Comp. R. & Regs. 160-4-7-.05 app.(e) ..................4

H.B. 768, 154th Gen. Assemb., Reg.

Sess. (Ga. 2018),

https://tinyurl.com/yckbhrhk (last

visited Dec. 21, 2021) ...........................................20

vi

John H. Blume et al., A Tale of Two

(and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years After the

Supreme Court’s Creation of a Categorical Bar, 23 Wm. & Mary Bill

Rts. J. 393 (2014) ................................................19

Lauren Sudeall Lucas, An Empirical

Assessment of Georgia’s Beyond a

Reasonable Doubt Standard to

Determine Intellectual Disability in

Capital Cases, 33 Ga. St. U. L. Rev.

553 (2017) ............................................. 9, 11, 12, 14

Sandy Hodson, After Two Decades on

Death Row, Burke County Man Will

Face Life in Prison, The Augusta

Chronicle (Aug. 25, 2020),

https://tinyurl.com/yckrfxb3 ................................12

Veronica M. O’Grady, Beyond a

Reasonable Doubt: The

Constitutionality of Georgia’s

Burden of Proof in Executing the

Mentally Retarded, 48 Ga. L. Rev.

1189 (2014) ...........................................................20

INTEREST OF AMICI CURIAE 1

Amici are former Solicitors General of the United

States. They have litigated and written on questions

of constitutional adjudication, the institutional role of

the Supreme Court, and adherence to the rule of law.

They file this brief in support of Petitioner Rodney

Young to highlight the ways in which Georgia’s extraordinary and exceptional rule requiring defendants to prove intellectual disability beyond a

reasonable doubt to avoid an unconstitutional death

sentence flouts this Court’s precedents and threatens

vital rule-of-law values.

Charles Fried served as Solicitor General of the

United States under President Ronald Reagan.

Seth P. Waxman served as Solicitor General of

the United States under President Bill Clinton.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Individuals seeking to establish violations of their

constitutional rights do not have to prove the facts entitling them to the Constitution’s protection beyond a

reasonable doubt—except, that is, in Georgia, if they

are intellectually disabled and are seeking to be

1 No party or counsel for a party authored this brief in whole

or in part. No party, counsel for a party, or person other than

amici or their counsel made any monetary contribution intended

to fund the preparation or submission of this brief. All parties

were notified of amici’s intent to submit this brief at least 10

days before it was due, and all parties have consented to the filing of this brief.

2

spared an unconstitutional death sentence. It is hard

to think of a less defensible departure from the ordinary standards of constitutional adjudication. And indeed, Georgia’s rule is irreconcilable with this Court’s

precedents.

This brief focuses on two lines of this Court’s precedent. First, a principle of ancient origin that has

taken on special salience in modern death-penalty jurisprudence: When the state is pitted against the individual, and the individual’s life is at stake, the

consequences are too serious to put almost all the risk

of an erroneous determination on the individual. And

second, a corollary more recently announced but no

less important: States may not through their procedures “create[] an unacceptable risk that persons with

intellectual disability will be executed.” Hall v. Florida, 572 U.S. 701, 704 (2014).

By using a standard of proof that shifts almost all

the risk of a wrongful execution to the defendant,

Georgia has done just that, in violation of both the

Due Process Clause of the Fourteenth Amendment

and the Eighth Amendment. In fact, Georgia’s rule is

even more egregious than the procedures this Court

held unconstitutional in Hall and Moore v. Texas, 137

S. Ct. 1039 (2017) (Moore I).

This Court in the past has not hesitated to stop

states from using procedural rules to subvert the Constitution’s prohibition on executing the intellectually

disabled. It should not hesitate now to halt the most

egregious state effort so far. Invalidating Georgia’s

rule would not only eliminate an extreme and unconstitutional outlier but would also reaffirm several

3

principles vital to the rule of law, including that lower

courts are obligated to follow this Court’s precedents

irrespective of whether they think those precedents

are correct or might be reconsidered and that procedural rules may not subvert substantive protections.

The Court should grant the petition, vacate the

judgment below, and remand for a retrial under a less

stringent standard of proof, either after plenary review or in summary fashion.

ARGUMENT

The beyond-a-reasonable-doubt standard should

not obstruct the enforcement of the Constitution’s

commands. In every other context, Georgia (like other

jurisdictions in the United States) recognizes as

much. See Pet. §§ I & III. Yet Georgia has carved out

what may be the most perverse exception imaginable:

When the consequences of an erroneous determination for the individual are the gravest—death—and

when an individual, because of intellectual disability,

faces a “special risk of wrongful execution,” Atkins v.

Virginia, 536 U.S. 304, 321 (2002), Georgia requires

defendants to prove beyond a reasonable doubt that

they are intellectually disabled, such that executing

them would be unconstitutional. Georgia’s approach

facilitates unconstitutional executions and is contrary

to this Court’s precedents.

4

I.

Georgia’s

Beyond-A-Reasonable-Doubt

Standard

Violates

The

Fundamental

Principle That The Risk Of A Wrongful

Execution Cannot Fall Entirely On The

Individual.

Georgia’s rule flouts a long-standing principle, enshrined in precedent, that the consequences of a

wrongful death sentence are too grave to shift almost

the entire risk of error to the defendant.

As a general matter, standards of proof “allocate

the risk of error between the litigants.” Addington v.

Texas, 441 U.S. 418, 423 (1979). The beyond-a-reasonable-doubt standard is the most stringent in our legal

system and places “almost the entire risk of error

upon” the party bearing the burden of proof. Id. at

424.

Georgia does not impose that high burden or place

that risk on individuals seeking to vindicate other

constitutional rights; indeed, no one does. See Pet. 2530. Nor does Georgia saddle individuals with that

stringent standard when they seek to establish intellectual disability for other purposes. For instance, individuals need not demonstrate their intellectual

disability beyond a reasonable doubt to be eligible for

services from the state’s Department of Behavioral

Health and Developmental Disabilities or to secure

special education. 2 See Moore I, 137 S. Ct. at 1052

2 See Application for Intellectual/Developmental Disabilities Services, Ga. Dep’t of Behav. Health & Dev. Disabilities,

https://tinyurl.com/54a43tvf (last visited Dec. 21, 2021); Ga.

Comp. R. & Regs. 160-4-7-.05 app. (e) (child eligible so long as a

5

(finding infirmity in the state’s handling of intellectual disability determinations in part because they

were inconsistent with “Texas’ own practices in other

contexts” (emphasis added)). Rather, Georgia reserves

the riskiest of standards for cases in which the stakes

are the highest for intellectually disabled persons—

when they are seeking the Constitution’s protection

from “the gravest sentence our society may impose.”

Hall, 572 U.S. at 724.

Georgia’s approach runs counter to the principle,

espoused by authorities ranging from the Old Testament to Aristotle to Blackstone, that the consequences of some determinations are too grave to place

almost the entire risk of error on the individual. See

Daniel Epps, The Consequences of Error in Criminal

Justice, 128 Harv. L. Rev. 1065, 1077-81 (2015). This

Court has reaffirmed the principle many times over

and recognized its special salience when a person’s

life is at stake. In Santosky v. Kramer, for instance,

this Court confirmed that “[w]hen the State brings a

criminal action to deny a defendant liberty or

life, … ‘the interests of the defendant are of such magnitude that … they have been protected by standards

of proof designed to exclude as nearly as possible the

likelihood of an erroneous judgment.’” 455 U.S. 745,

755 (1982) (quoting Addington, 441 U.S. at 423).

Thus, “[w]hen the choice is between life and death,” a

heightened risk of wrongful execution created by a

state procedure “is unacceptable and incompatible

with the commands of the Eighth and Fourteenth

Amendments.” Lockett v. Ohio, 438 U.S. 586, 605

“comprehensive evaluation indicates deficits in both intellectual

functioning and adaptive behavior.”).

6

(1978) (plurality op.); see Beck v. Alabama, 447 U.S.

625, 637 (1980) (“Such a risk [of an unwarranted conviction] cannot be tolerated in a case in which the defendant’s life is at stake.”).

The Court’s concern with erroneous determinations in high-stakes proceedings runs so deep that

this Court has held unconstitutional the use of stringent standards of proof even when a life does not hang

in the balance and even if the defendant bears the

burden of proof. As Petitioner details, the Court in

Cooper v. Oklahoma, 517 U.S. 348, 363-64 (1996), invalidated Oklahoma’s rule requiring the defendant to

prove incompetence to stand trial by clear and convincing evidence because it “imposes a significant risk

of an erroneous determination that the defendant is

competent” where the “consequences of an erroneous

determination”—an incompetent person is made to

stand trial—“are dire.”

The concern is heightened here. The consequence

of a wrongful execution for the individual is as grave

and irreversible as can be. By comparison, “the injury

to the State of the opposite error”—that a person who

might constitutionally be sentenced to death is permitted to live—“is modest.” Id. at 365. Indeed, it is far

more modest than the costs of an erroneous acquittal—a risk this Court has recognized society appropriately bears. See In re Winship, 397 U.S. 358, 361-64

(1970). A false negative in a guilt determination

means a guilty person escapes punishment and remains free to reoffend. A false negative in a deathpenalty determination, by contrast, means that an offender who could have been executed is instead sentenced to life in prison. See Ga. Code Ann. § 17-7-

7

131(j). That offender is still “punished” just “not, however, [with] the law’s most severe sentence.” Hall, 572

U.S. at 709.

II. Georgia’s

Beyond-A-Reasonable-Doubt

Standard Is Irreconcilable With Atkins And

Its Progeny.

Unjustified in any capital proceeding, see supra

§ I, Georgia’s extraordinary and exceptional standard

of proof is particularly perverse in the Atkins context,

where “[t]he risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty is enhanced” for persons with

intellectual disability, due to risk factors stemming

from that disability, including how they are likely to

present to a jury. Atkins, 536 U.S. at 320-21 (emphasis added) (citation omitted).

It was that concern (among others) that led the

Court to conclude in Atkins that imposing the death

penalty on persons with intellectual disability violates the Constitution. And it was the Court’s commitment to its Atkins precedent that drove the Court in

Hall and Moore I to invalidate state rules that “create[d] an unacceptable risk that persons with intellectual disability will be executed.” Hall, 572 U.S. at 704.

Those cases, in turn, compel the conclusion that Georgia’s stringent standard of proof is unconstitutional.

It has the same flaws as the rules in those cases and,

indeed, is in certain respects more egregious and more

requiring of correction by this Court.

8

A. Georgia’s

rule

is

at

least

as

unconstitutional as the rules in Hall and

Moore I.

In both Hall and Moore I, this Court held unconstitutional state rules that meant that individuals

who met the clinical definition of intellectual disability would still be eligible for the death penalty. In

Hall, that was the case if defendants fell just above

Florida’s IQ cut-off. 572 U.S. at 704, 711-12. In Moore

I, that was true if defendants failed to show their

adaptive deficits did not accord with certain lay perceptions of intellectual disability or outweigh their

adaptive strengths. 137 S. Ct. at 1050-51. Georgia’s

rule has the same unconstitutional effect. It means

that defendants who are more likely than not intellectually disabled can still be sentenced to death just because they haven’t satisfied the jury of that fact

beyond a reasonable doubt.

More specifically, Georgia’s standard reproduces

the very flaws this Court called out in Hall and Moore,

if not “in haec verba, certainly in substance.” Moore v.

Texas, 139 S. Ct. 666, 672 (2019) (Moore II) (Roberts,

C.J., concurring).

The problem with Hall’s strict IQ cut-off was that

it “ignore[d] the inherent imprecision of these tests,”

which rendered it inappropriate to treat an IQ score

“as final and conclusive” of other evidence of intellectual disability. Hall, 572 U.S. at 723, 712. Not only

does Georgia’s beyond-a-reasonable-doubt standard

ignore that imprecision by requiring a degree of certainty those tests cannot provide, see Brief of Disability Rights Organizations, Georgia’s standard also

9

exploits that imprecision by providing a reason for jurors to disregard even undisputed scores within the

unconstitutional range. After all, the presence of a

doubt about evidence that “leaves [the jury’s] mind

wavering, unsettled or unsatisfied” means the defendant has not carried his burden. Tr. 3273-74. In the

case of Alphonso Stripling, for instance, a Georgia

jury rejected his claim of intellectual disability, even

though two mental health experts for the defense

agreed that Stripling, who had IQ scores of 64 and 68,

was intellectually disabled. The prosecution’s expert,

who conducted no testing of his own and conceded

that the defense expert’s testing was valid, nevertheless offered his “guestimate” that Stripling’s intellectual function was instead average—likely providing

enough doubt to sway the jury. Lauren Sudeall Lucas,

An Empirical Assessment of Georgia’s Beyond a Reasonable Doubt Standard to Determine Intellectual

Disability in Capital Cases, 33 Ga. St. U. L. Rev. 553,

585-86 (2017).

Georgia’s standard also encourages the jury to

make the same errors that this Court unanimously

concluded in Moore I rendered Texas’s use of the socalled Briseno factors unconstitutional. See 137 S. Ct.

at 1053 (Roberts, C.J., dissenting) (“I agree with the

Court today that those factors are an unacceptable

method of enforcing the guarantee of Atkins[.]”);

Moore II, 139 S. Ct. at 669 (“[A]ll [Members of the

Court] agreed about the impropriety of the Briseno

factors.”). One problem with the Briseno factors was

that they “invited ‘lay perceptions of intellectual disability’ and ‘lay stereotypes’ to guide assessment of intellectual disability,” including, for instance, the

stereotypical judgments that people with intellectual

10

disability can’t hold down jobs or maintain intimate

relationships. Moore II, 139 S. Ct. at 669 (quoting

Moore I, 137 S. Ct. at 1051); see id. at 672 (citing as

examples of reliance on lay stereotypes state court’s

assessment of defendant “‘ha[ving] a girlfriend’ and a

job as tending to show he lacks intellectual disability”). The beyond-a-reasonable-doubt standard likewise calls for jurors to seize on any shred of evidence

that gives them pause—including anything that goes

against their (mis)perceptions about the capabilities

of people with intellectual disability. Here, for instance, the prosecution repeatedly invoked Petitioner’s ability to keep his job labeling cans and have

relationships with women, thus playing to stereotypes to sow doubt about whether Petitioner had an

intellectual disability. See, e.g., Tr. 3268-69 (“[Y]ou

get this picture from what the defense is arguing that

he[] sits there all day long with drool coming down his

face sticking labels on a can…. Isn’t it odd that if the

defendant really is as mentally retarded as they claim

he is, that these men [his co-workers] can do this same

job[?]”); Tr. 3289-90 (“[T]he fact, again, that he’s able

to have this other relationship with another woman

shows that he is multi-faceted[.]”); Tr. 3275 (“He’s

able to have a relationship[]” with his girlfriend); Tr.

3287 (“[H]e argued over his finances with his [girlfriend], which means he’s not a doormat.”).

The Court’s summary reversal in Moore II illustrated how easily factfinders can slip into stereotypes.

139 S. Ct. at 672 (language from the decision below

“suggest[ed] reliance upon … ‘lay stereotypes of the

intellectually disabled’”). If expert judges who had

been expressly instructed by this Court on remand to

do better could make that mistake, see id., so can lay

11

jurors who are coaxed (inadvertently or otherwise)

into it by “impassioned” (Pet. App. 69a) prosecutors

emphasizing the beyond-a-reasonable-doubt standard.

B. Georgia’s rule is worse than the rules in

Hall and Moore I.

In at least one key respect, Georgia’s rule is even

more troubling than the rules this Court invalidated

in Hall and Moore I (and again in Moore II).

The rules in Hall and Moore were most likely to

wrongfully exclude individuals at the edges of the constitutionally protected class. The rule in Hall, after

all, set a standard for the outer limits of subaverage

intellectual functioning. And Moore’s Briseno factors

tended to exclude individuals with “‘mild’ intellectual

disability.” 137 S. Ct. at 1051. The Court held those

rules unconstitutional because “States may not execute anyone in the entire category of [intellectually

disabled] offenders.” Id. (emphasis altered) (citation

omitted). The beyond-a-reasonable-doubt standard is

likely to wrongfully exclude everyone from the category of intellectually disabled offenders. Not one capital defendant in Georgia tried for intentional murder

has ever succeeded in proving intellectual disability

beyond a reasonable doubt. See Lucas, supra, at 582.

That is not because all those individuals presented only borderline cases of intellectual disability.

The group includes individuals who squarely fell

within the category of individuals the Constitution

protects. For instance, uncontradicted trial evidence

showed (among other things) that Willie Palmer had

12

an IQ of 61 and was deficient in 8 of 11 categories of

adaptive functioning. He couldn’t tie his shoes at age

11. Yet despite the lack of any expert rebuttal testimony by the state, Palmer was sentenced to death by

a jury who was told that “the most important thing

that you must understand is that what we do in psychology … is not necessarily what we do in a courtroom.” See Lucas, supra, at 590-91. If Palmer’s

sentence had not been overturned after he spent almost 23 years on death row, 3 he would have been unconstitutionally executed. Warren Lee Hill was not so

fortunate: Georgia executed him, even though the

state post-conviction court determined he was intellectually disabled by a preponderance of the evidence—a determination that would have spared his

life in nearly every other state. See Pet. 17 & n.4; Hill

v. Humphrey, 662 F.3d 1335, 1364 (11th Cir. 2011) (en

banc) (Tjoflat, J., specially concurring); Alan Binder,

Georgia Executes Warren Lee Hill for Murder, N.Y.

Times (Jan. 27, 2015), https://tinyurl.com/ycxw53ms.

3 See Sandy Hodson, After Two Decades on Death Row,

Burke County Man Will Face Life in Prison, The Augusta Chronicle (Aug. 25, 2020), https://tinyurl.com/yckrfxb3. The prosecution took death off the table as part of a consent decree that

followed revelations of prosecutorial misconduct. That it took

such an extraordinary development to prevent Palmer’s unconstitutional execution only underscores the risk Georgia’s standard creates of wrongful executions.

13

C. Georgia’s rule is more amenable to

correction than the rules in Hall and

Moore I.

This Court is on even stronger institutional footing to resolve the questions presented in this case

than it was in Hall and Moore I.

For one thing, rejecting Georgia’s uniquely high

standard of proof does not require the Court to assess

or endorse any clinical judgment or medical consensus about intellectual disability. See Moore I, 137 S.

Ct. at 1054 (Roberts, C.J., dissenting) (“But clinicians,

not judges, should determine clinical standards; and

judges, not clinicians, should determine the content of

the Eighth Amendment.”). To answer the question

presented under the Eighth Amendment, the Court

need only apply the ordinary constitutional analysis,

for here consensus in the states provides the “objective indicia of society’s standards” that show Georgia’s

rule is unconstitutional. Hall, 572 U.S. at 714 (quoting Roper v. Simmons, 543 U.S. 551, 563 (2005)).

Georgia’s legislature is the only one in the nation to

have adopted the beyond-a-reasonable-doubt standard in this context. And so in this case, as in Atkins,

the Court need “swe[ep] only as far as [the national]

consensus,” as established by state legislatures.

Moore I, 137 S. Ct. at 1057 (Roberts, C.J., dissenting)

(citing Atkins, 536 U.S. at 321). That is, on this issue,

there is no “serious disagreement.” Id. (quoting Atkins, 536 U.S. at 317); compare Hall, 572 U.S. at 730

(Alito, J., dissenting) (citing the lack of a “methodological consensus” as a reason to reject the Eighth

Amendment claim). There is only Georgia, standing

alone and without justification. See Pet. 23; Raulerson

14

v. Warden, 928 F.3d 987, 1014 n.3 (11th Cir. 2019)

(Jordan, J., concurring in part and dissenting in part)

(“The Georgia Supreme Court’s reasoning—that the

standard of proof is high because the General Assembly defined intellectual disability to require a high

standard of proof—is tautological and fails to identify

a state interest that the burden of proof actually

serves.”). 4

Determining the standard of proof required under

the Due Process Clause is likewise a classic exercise

of the judicial function. See Santosky, 455 U.S. at 75556 (“[T]he degree of proof required in a particular type

of proceeding ‘is the kind of question which has traditionally been left to the judiciary to resolve.’”) (quoting Woodby v. INS, 385 U.S. 276, 284 (1966)). Indeed,

this Court has a long history of determining the minimum standards of proof in state-court proceedings

required under the Due Process Clause. E.g., Winship, 397 U.S. at 364 (Due Process Clause of the Fourteenth Amendment protects criminal defendants in

state proceeding against conviction except upon proof

beyond a reasonable doubt of every fact necessary to

constitute the crime charged); Cooper, 517 U.S. at

367-68 (“[W]e consider here whether a State’s procedures for guaranteeing a fundamental constitutional

right are sufficiently protective of that right.”).

4 In fact, there is evidence that Georgia’s legislature “inadvertently” adopted the beyond-a-reasonable-doubt standard in a

bout of “careless drafting.” Lucas, supra, at 561. That, however,

has not stopped Georgia from continuing to adhere to and defend

its standard. See infra § III.B.

15

What’s more, in holding that the beyond-a-reasonable-doubt standard is unconstitutional in this

context, the Court would be setting forth a bright-line

rule that offers clear guidance to states. Compare

Moore I, 137 S. Ct. at 1058 (Roberts, C.J., dissenting)

(criticizing “the lack of guidance [the majority opinion] offers to States seeking to enforce the holding of

Atkins”).

III. Georgia’s Outlier Approach Threatens The

Rule Of Law In Ways Only This Court Can

Remedy.

A. Georgia’s rule undermines the rule of

law.

Several important rule-of-law values further compel the invalidation of Georgia’s rule.

1. Striking Georgia’s rule would reinforce the importance of vertical stare decisis—an “absolute” principle that imposes a “constitutional obligation [on

state courts] to follow a precedent of this Court.” Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n.5 (2020)

(Kavanaugh, J., concurring in part). As demonstrated, Georgia’s distinctive and restrictive approach

is irreconcilable with several decisions of this Court.

Ensuring that lower courts adhere to this Court’s

precedents is reason enough to grant review, but

there is special need here, just as there was in Moore

II. See 139 S. Ct. at 672 (summarily reversing lower

court for failing to adhere to Moore I). The decision

below reflects a cavalier attitude toward this Court

and its authority. Specifically, a concurrence for three

16

of the justices in the majority derided several of this

Court’s Eighth Amendment decisions as turning on

the whims of its current personnel. See Pet. App. 95a97a & n.29; Pet. App. 99a (Nahmias, J., specially concurring) (describing Eighth Amendment jurisprudence as turning on “whether five Justices decide to

‘evolve’ the Eighth Amendment a little more”). Those

justices recognized that the “reasoning” of several of

this Court’s decisions “casts doubt on [Georgia’s]

uniquely high standard of proof,” yet concluded that

“courts like [Georgia’s] should be cautious in deciding

Eighth Amendment cases based on aspects of the reasoning” because this Court “as currently comprised”

was unlikely to follow Hall and Moore, “notwithstanding the reasoning of the majority opinions in those two

cases.” Pet. App. 98a-99a, 100a-101a.

This Court should vacate the decision below to reaffirm that lower-court judges must follow this

Court’s precedents—including its reasoning—as it

stands, instead of assuming that a differently composed Court would abandon the logic of prior cases.

See, e.g., Richmond Screw Anchor Co. v. United

States, 275 U.S. 331, 340 (1928) (“a reason given for

[the Court’s] conclusion” is to be “regarded as authority”). “As a lower court in a system of absolute vertical

stare decisis headed by one Supreme Court, it is essential that [Georgia’s Supreme Court] follow both

the words and the music of Supreme Court opinions”—even when the musicians are different. United

States v. Martinez-Cruz, 736 F.3d 999, 1006 (D.C. Cir.

2013) (Kavanaugh, J., dissenting).

2. Striking down Georgia’s rule would also reaffirm the fundamental principle that the power to

17

“enforce [a] constitutional restriction,” Atkins, 536

U.S. at 317, does not include the power to undermine

it. Put differently, “a constitutional prohibition cannot be transgressed indirectly by the creation of a

[procedural rule] any more than it can be violated by

direct enactment.” Bailey v. Alabama, 219 U.S. 219,

239 (1911). That is just as true when it comes to

standards of proof as any other procedural mechanism. See Cooper, 517 U.S. at 367-68 (holding that the

“[s]tate’s procedure[] for guaranteeing a fundamental

constitutional right”—specifically, its standard of

proof—was not “sufficiently protective of that right”).

3. Finally, doing away with Georgia’s rule would

restore the minimum degree of uniformity that is critical to the fair administration of the death penalty

and public confidence in the criminal justice system.

It is vital that there be “consistency in the application of the death penalty and confidence that it is

not being administered haphazardly.” Hall, 572 U.S.

at 738 (Alito, J., dissenting). Indeed, “[t]he Constitution … requires that death penalty statutes be structured so as to prevent the penalty from being

administered in an arbitrary and unpredictable fashion.” California v. Brown, 479 U.S. 538, 541 (1987).

And “[i]t is critical that the moral force of the criminal

law not be diluted by a standard of proof that leaves

people in doubt” as to whether only those deserving of

death “are being condemned.” Winship, 397 U.S. at

364; see id. at 370 (Harlan, J., concurring) (standards

of proof reflect “the degree of confidence our society

thinks [the factfinder] should have in the correctness”

of decisions). Georgia’s beyond-a-reasonable-doubt

standard invites prejudice and passion and all but

18

ensures unconstitutional death sentences. In doing

so, it contributes to the arbitrary application of the

death penalty and dilutes the moral force of the criminal law.

The existence of even a single outlier is cause for

concern. See Moore I, 137 S. Ct. at 1052 (noting that

Texas was an “outlier” in using the Briseno factors).

And Georgia is not just any outlier. It ranks sixth

among states in the number of executions carried out,

and in one recent year, executed more people than any

other state in the nation. 5

Some variation among the states is, of course, often acceptable and sometimes even desirable. See Oregon v. Ice, 555 U.S. 160, 171 (2009) (“We have long

recognized the role of the States as laboratories for

devising solutions to difficult legal problems.”). Invalidating Georgia’s extreme procedural approach would

not deprive states of the leeway to “develop[] appropriate ways to enforce” the Constitution’s prohibition

on executing the intellectually disabled. Atkins, 536

U.S. at 317 (quoting Ford v. Wainwright, 477 U.S.

399, 416-17 (1986)) (emphasis added). After all, every

other state has been able to advance its interests

without imposing on the defendant the burden to

prove intellectual disability beyond a reasonable

doubt. And going forward, states would retain considerable discretion to set the procedures for intellectualdisability claims, including which party bears the

5 Death Penalty Info. Ctr., Executions By State and Region

Since 1976, https://tinyurl.com/2p8sejvd (last visited Dec. 21,

2021).

19

burden of proof. See John H. Blume et al., A Tale of

Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years After the

Supreme Court’s Creation of a Categorical Bar, 23

Wm. & Mary Bill Rts. J. 393, 410 (2014) (discussing

various state procedures for implementing Atkins, including ones that exclusively entrust juries with the

determination, some in which only judges make the

decisions, and various hybrid options). Vacating the

decision below would merely recognize that, while

“procedures must be allowed to vary,” they must still

“meet the constitutional minimum,” Addington, 441

U.S. at 431, and that Georgia’s unique rule does not.

B. Georgia will not change course absent

intervention by this Court.

The Georgia Supreme Court has made clear that

it will not revisit its long-standing precedent upholding the beyond-a-reasonable-doubt standard. Pet.

App. 28a (“[W]e adhere to our prior decisions upholding Georgia’s standard of proof.”); Pet. App. 101a

(Nahmias, J., specially concurring) (“I see no compelling reason for this Court to overrule our well-established precedent on this issue.”); see also Head v. Hill,

587 S.E.2d 613, 622 (2003) (“[W]e believe that Cooper

should not be extended to retardation decisions unless

the Supreme Court of the United States so requires at

some future date.”). Change will not come from the

lower federal courts, either. On habeas review, the

Eleventh Circuit has repeatedly—and en banc—rejected constitutional challenges to Georgia’s standard. See Hill, 662 F.3d at 1338; Raulerson, 928 F.3d

at 992. There is likewise little hope that Georgia’s legislature will change course. It has deliberately chosen

20

to stick with its unique standard in the face of efforts

to review and alter it. 6

CONCLUSION

For the foregoing reasons, the Court should grant

plenary review or, in the alternative, summarily reverse the denial of Petitioner’s request for a retrial

and remand for a retrial on intellectual disability under a less stringent standard of proof.

Respectfully submitted,

Robert M. Loeb

Jonas Q. Wang

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street N.W.

Washington, D.C. 20005

(202) 339-8475

Rachel G. Shalev

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5033

rshalev@orrick.com

December 23, 2021

6 See, e.g., H.B. 768, 154th Gen. Assemb., Reg. Sess. (Ga.

2018), https://tinyurl.com/yckbhrhk (last visited Dec. 21, 2021)

(showing stalled progress of bill that would lower the standard

to preponderance of the evidence); Veronica M. O’Grady, Beyond

a Reasonable Doubt: The Constitutionality of Georgia’s Burden

of Proof in Executing the Mentally Retarded, 48 Ga. L. Rev. 1189,

1193 (2014) (describing an “informational hearing regarding the

‘beyond a reasonable doubt’ standard” a Georgia legislative committee held following calls for change).