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

No. 21-782

Capital Case

In the

Supreme Court of the United States

RODNEY RENIA YOUNG,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

On Petition for a Writ of Certiorari to

the Supreme Court of Georgia

BRIEF OF THE RUTHERFORD INSTITUTE,

CONSERVATIVES CONCERNED ABOUT THE

DEATH PENALTY, AND BRETT HARRELL AS

AMICI CURIAE IN SUPPORT OF PETITIONER

John W. Whitehead

William E. Winters

The Rutherford Institute

109 Deerwood Road

Charlottesville, VA 22911

(434) 978-3888

Attorneys for Amicus

Curiae The Rutherford

Institute

Caitlin Halligan

Counsel of Record

Hannah Belitz

Claire O’Brien

Denae K assotis

Douglas Wagner

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, NY 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

309373

TABLE OF CONTENTS

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

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

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

I.

II.

BURDENS OF PROOF REFLECT

SOCIETAL JUDGMENTS ABOUT THE

PROPER ALLOCATION OF RISK ..................... 4

A.

Beyond A Reasonable Doubt Is A

Burden Intended To Safeguard

Individual Liberty From

Governmental Overreach ............................. 4

B.

Preponderance Of The Evidence Is

Intended To Balance The Risk Of

Error Where An Individual Seeks To

Assert A Constitutional Right ...................... 5

C.

Only Georgia Requires Proof Beyond

A Reasonable Doubt For

Intellectually Disabled Individuals To

Invoke Their Right Not To Be

Executed ...................................................... 10

BEYOND A REASONABLE DOUBT

CANNOT BE THE STANDARD FOR

VINDICATING CONSTITUTIONAL

RIGHTS .............................................................. 12

A.

A Compelling Reason Must Exist To

Impose A Heightened Burden .................... 13

i

B.

Georgia Has No Compelling Reason

For Imposing A Heightened Burden .......... 14

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas,

441 U.S. 418 (1979) ..................................... 4, 5, 6

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................. 4

Atkins v. Virginia,

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

Bailey v. Alabama,

219 U.S. 219 (1911) ........................................... 16

Baskerville v. Mulvaney,

411 F.3d 45 (2d Cir. 2005) ................................... 6

Bearchild v. Cobban,

947 F.3d 1130 (9th Cir. 2020) ............................. 6

Bobby v. Bies,

556 U.S. 825 (2009) ........................................... 15

Brady v. Maryland,

373 U.S. 83 (1963) ........................................... 7, 8

Campbell v. Pa. Sch. Bd. Ass’n,

972 F.3d 213 (3d Cir. 2020), cert. denied,

141 S. Ct. 2854 (2021) ......................................... 9

Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) ............................. 6

iii

Coker v. Georgia,

433 U.S. 584 (1977) ............................................. 9

Conley v. United States,

5 F.4th 781 (7th Cir. 2021) .................................. 8

Cooper v. Oklahoma,

517 U.S. 348 (1996) ........................... 5, 11, 15, 16

Crawford-El v. Britton,

523 U.S. 574 (1998) ............................................. 9

Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261 (1990) ........................................... 13

Drumgold v. Callahan,

707 F.3d 28 (1st Cir. 2013) .................................. 7

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................. 5

Franks v. Delaware,

438 U.S. 154 (1978) ............................................. 7

Gilmore v. Taylor,

508 U.S. 333 (1993) ........................................... 14

Grogan v. Garner,

498 U.S. 279 (1991) ............................................. 6

Hall v. Florida,

572 U.S. 701 (2014) ........................................... 12

Harris v. Ariz. Indep. Redistricting Comm’n,

578 U.S. 253 (2016) ............................................. 8

iv

Head v. Hill,

587 S.E.2d 613 (Ga. 2003) ................................. 17

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983) ............................................. 6

Hill v. Humphrey,

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

denied, 566 U.S. 1041 (2012) ............................ 16

Hunter v. Underwood,

471 U.S. 222 (1985) ............................................. 8

Johnson v. California,

545 U.S. 162 (2005) ............................................. 7

Jones v. Campbell,

436 F.3d 1285 (11th Cir. 2006) ........................... 8

Kyles v. Whitley,

514 U.S. 419 ......................................................... 8

Leland v. Oregon,

343 U.S. 790 (1952) ............................................. 4

Madison v. Comm’r, Ala. Dep’t of Corr.,

761 F.3d 1240 (11th Cir. 2014) ........................... 7

McCarty v. Henson,

749 F.2d 1134 (5th Cir. 1984) ............................. 8

Medina v. California,

505 U.S. 437 (1992) ........................................... 12

Moore v. Texas,

137 S. Ct. 1039 (2017) ....................................... 12

v

Patterson v. New York,

432 U.S. 197 (1977) ....................................... 5, 15

People v. Vasquez,

84 P.3d 1019 (Colo. 2004) (en banc) .................. 11

Raulerson v. Warden,

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

denied, 140 S. Ct. 2568 (2020) .......................... 16

Speiser v. Randall,

357 U.S. 513 (1958) ......................................... 4, 5

State v. Grell,

135 P.3d 696 (Ariz. 2006) (en banc) .................. 11

Strickland v. Washington,

466 U.S. 668 (1984) ............................................. 8

Stripling v. State,

711 S.E.2d 665 (Ga. 2011) ................................. 16

Tatro v. Kervin,

41 F.3d 9 (1st Cir. 1994) ...................................... 7

Tijani v. Willis,

430 F.3d 1241 (9th Cir. 2005) ............................. 4

United States v. Bagley,

473 U.S. 667 (1985) ............................................. 8

United States v. Garcia,

793 F.3d 1194 (10th Cir. 2015) ........................... 7

In re Winship,

397 U.S. 358 (1970) ......................................... 4, 5

vi

Woodson v. North Carolina,

428 U.S. 280 (1976) (plurality opinion) .............. 5

Young v. State,

860 S.E.2d 746 (Ga. 2021) ................................. 10

Statutes & Rules

28 U.S.C. § 2254 ...................................................... 16

42 U.S.C. § 1983 ........................................................ 9

Ga. Code § 17-7-131 ................................................ 10

Other Authorities

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

Possibly Three) Atkins, 23 WM. & MARY

BILL RTS. J. 393 (2014) ...................................... 15

Jenny-Brooke Condon, Denialism and the

Death Penalty, 97 WASH. U. L. REV. 1397

(2020) ................................................................. 18

Facts About the Death Penalty, DEATH

PENALTY INFO. CTR.,

https://documents.deathpenaltyinfo.org/p

df/FactSheet.pdf (last updated Dec. 9,

2021)................................................................... 14

THE FEDERALIST NO. 1 (Alexander Hamilton)

(Coventry House Publishing ed., 2015) .............. 2

vii

Adam M. Gershowitz, Pay Now, Execute

Later: Why Counties Should Be Required

to Post a Bond to Seek the Death Penalty,

41 U. RICH. L. REV. 861 (2007) .......................... 17

Hon. Calvin Johnson, An Analysis of the

Economic Cost of Maintaining a Capital

Punishment System in the Pelican State

(2019),

https://law.loyno.edu/sites/default/files/ec

onomic_cost_paper_la_5.1.2019.pdf .................. 17

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) ....................... 10

viii

INTEREST OF AMICI CURIAE1

The Rutherford Institute is an international

nonprofit organization headquartered in Charlottesville, Virginia. Founded in 1982 by its President,

John W. Whitehead, the Institute provides legal assistance at no charge to individuals whose constitutional

rights have been threatened or violated and educates

the public about constitutional and human rights issues affecting their freedoms. The Rutherford Institute works tirelessly to resist tyranny and threats to

freedom by seeking to ensure that the government

abides by the rule of law and is held accountable when

it infringes on the rights guaranteed to persons by the

Constitution and laws of the United States.

Conservatives Concerned About the Death

Penalty is a network of political and social conservatives who believe that the death penalty contradicts

conservative values because it is an inefficient, arbitrary, and wasteful system that devalues human life.

Brett Harrell is an American politician from

Georgia who served as a Republican member of the

Georgia House of Representatives from the 106th District from 2011 to 2021. Before that, Harrell served as

mayor of Snellville, Georgia, from 2000 to

1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae

states that no counsel for a party authored this brief in whole or

in part, and no person or entity other than amici curiae or their

counsel made a monetary contribution to this brief’s preparation

or submission. Pursuant to Supreme Court Rule 37.2, notice was

given to all parties, and all parties have consented to the filing of

this brief.

2003. Harrell introduced House Bill 702 to repeal the

death penalty in Georgia in 2019 and is an active member of Georgia Conservatives Concerned About the

Death Penalty.

Amici have an interest in this matter because it

deals with fundamental questions about governmental

infringement on individual rights guaranteed by the

Constitution, and in particular presents an opportunity to correct Georgia’s outlier approach to the

Eighth Amendment and the Due Process Clause.

SUMMARY OF ARGUMENT

The sanctity of individual liberty and the protection of individual rights against government overreach lie at the heart of this country’s founding. See,

e.g., THE FEDERALIST NO. 1, at 3 (Alexander Hamilton)

(Coventry House Publishing ed., 2015) (“I propose, in

a series of papers, to discuss … [t]he additional security which … adoption [of the proposed Constitution]

will afford to the preservation of that species of government, to liberty, and to property.”).

One way in which our legal system protects individual rights and liberties, including those guaranteed by the Eighth and Fourteenth Amendments, is

through the imposition of standards of proof. Standards of proof serve to allocate the risk of error between

the parties involved, and reflect a societal judgement

about which party should bear that risk. Cases involving more serious consequences, such as the potential

loss of liberty, demand a higher standard of

proof. Thus, in the criminal context, the government

typically bears the risk of error: it must prove its case

beyond a reasonable doubt in order to decrease the

2

likelihood of punishing an innocent person. Preponderance of the evidence, in contrast, more evenly balances the risk of error between the parties. When an

individual alleges that the government has violated

his constitutional right, he must generally do so by a

preponderance of the evidence. This standard reflects

a societal consensus that, when constitutional rights

are at stake, the individual and the government should

typically share the risk of error.

Georgia has departed from this allocation of

risk. It requires intellectually disabled individuals

facing the death penalty to prove their disability beyond a reasonable doubt—despite this Court’s holding

in Atkins v. Virginia, 536 U.S. 304 (2002), that the

Eighth Amendment prohibits the execution of intellectually disabled individuals. No other state imposes

such a high burden. This unanimity underscores “the

consistency of the direction of change,” id. at 315, as to

the acceptable burden of proof.

The single case in which this Court has sanctioned the imposition of a heightened burden for the

vindication of a constitutional right underscores the

need for a compelling reason to do so. Georgia lacks

any such compelling reason. Although states may regulate procedural burdens, those burdens violate the

Due Process Clause if they are not sufficiently protective of fundamental constitutional rights. Post-Atkins

capital cases in Georgia demonstrate that Georgia’s

onerous burden effectively vitiates that right. Georgia’s interest in efficient operation of its criminal justice system can be achieved through the imposition of

a lesser burden, but a wrongful execution is irreversible. This Court should welcome the opportunity to correct Georgia’s deeply consequential overreach.

3

ARGUMENT

I.

Burdens Of Proof Reflect Societal Judgments About The Proper Allocation Of

Risk

Litigation always involves “a margin of error,”

Speiser v. Randall, 357 U.S. 513, 525 (1958), and “the

function of legal process is to minimize the risk of erroneous decisions,” Addington v. Texas, 441 U.S. 418,

425 (1979). Burdens of proof “serve[] to allocate the

risk of error,” id. at 423, and represent a “profound

judgment about the way in which law should be enforced and justice administered,” Apprendi v. New Jersey, 530 U.S. 466, 478 (2000) (quoting In re Winship,

397 U.S. 358, 361–62 (1970)). One such profound judgment is that, “when a fundamental right, such as individual liberty, is at stake, the government must bear

the lion’s share of the burden.” Tijani v. Willis, 430

F.3d 1241, 1245 (9th Cir. 2005) (Tashima, J., concurring) (collecting cases).

A.

Beyond A Reasonable Doubt Is A

Burden Intended To Safeguard Individual Liberty From Governmental

Overreach

In criminal cases, the government must prove

its case beyond a reasonable doubt. “This notion—

basic in our law and rightly one of the boasts of a free

society—is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due

process.’” In re Winship, 387 U.S. at 362 (quoting Leland v. Oregon, 343 U.S. 790, 802–03 (1952) (Frankfurter and Black, JJ., dissenting)). This Court has

4

repeatedly affirmed that view. See, e.g., Speiser, 357

U.S. at 526 (“Due process commands that no man shall

lose his liberty unless the Government has borne the

burden of producing the evidence and convincing the

factfinder of his guilt.”); Addington, 441 U.S. at 423–

24 (“In a criminal case, … the interests of the defendant are of such magnitude that historically …. [society

requires] that the state prove the guilt of an accused

beyond a reasonable doubt.”). Imposing this burden on

the government reflects society’s determination that

“it is far worse to convict an innocent man than to let

a guilty man go free.” Patterson v. New York, 432 U.S.

197, 208 (1977) (quoting In re Winship, 397 U.S. at 372

(Harlan, J., concurring)).

Such risk to the individual is at its highest in a

capital case because the “consequences of an erroneous

determination … are dire.” Cooper v. Oklahoma, 517

U.S. 348, 364 (1996). In capital proceedings, this

Court has generally demanded that “factfinding procedures aspire to a heightened standard of reliability,”

because “execution is the most irremediable and unfathomable penalties.” Ford v. Wainwright, 477 U.S.

399, 411 (1986). As this Court has repeatedly admonished, “death is different.” Id. (quoting Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion)).

B.

Preponderance Of The Evidence Is

Intended To Balance The Risk Of

Error Where An Individual Seeks To

Assert A Constitutional Right

A preponderance-of-the-evidence standard, in

contrast to a beyond-a-reasonable-doubt standard,

5

“allows both parties to ‘share the risk of error in

roughly equal fashion.’ Any other standard expresses

a preference for one side’s interests.” Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983) (quoting

Addington, 421 U.S. at 423). Preponderance is therefore the default standard of proof in civil litigation,

Grogan v. Garner, 498 U.S. 279, 286 (1991), and the

overwhelming body of caselaw demonstrates that preponderance is the burden placed on an individual seeking to assert his constitutional right, including under

the Eighth Amendment and Due Process Clause of the

Fourteenth Amendment. See Petition for Writ of Certiorari at 27–29 & nn.6–14.

In the Eighth Amendment context, for example,

courts have affirmed that a plaintiff asserting a claim

must do so by a preponderance of the evidence. See,

e.g., Baskerville v. Mulvaney, 411 F.3d 45, 48 (2d Cir.

2005) (affirming jury instruction requiring plaintiff to

prove Eighth Amendment excessive-force claim by a

preponderance of the evidence); cf. Bearchild v. Cobban, 947 F.3d 1130, 1136–37 (9th Cir. 2020) (remanding jury instruction that improperly explained the substantive elements of an Eighth Amendment claim, but

impliedly approving instruction that the claim should

be demonstrated by a preponderance of the evidence).

Courts likewise have held that preponderance is

the proper standard for claims under the Due Process

Clause. See, e.g., Castro v. County of Los Angeles, 833

F.3d 1060, 1072–73 (9th Cir. 2016) (affirming jury instruction requiring pretrial detainee to prove failureto-protect claim, under the Due Process Clause, by a

preponderance of the evidence). Plaintiffs seeking to

6

establish a due-process claim under Brady v. Maryland, 373 U.S. 83 (1963), must similarly do so by a preponderance of the evidence. See, e.g., United States v.

Garcia, 793 F.3d 1194, 1205 (10th Cir. 2015);

Drumgold v. Callahan, 707 F.3d 28, 48 (1st Cir. 2013).

This Court has also held that, when an accused

defendant seeks to suppress evidence, he needs to

prove only by a preponderance of the evidence that the

police abused their investigative discretion in violation

of the Fourth Amendment. See Franks v. Delaware,

438 U.S. 154, 156 (1978) (“In the event … the allegation of perjury or reckless disregard is established by

the defendant by a preponderance of the evidence …

the search warrant must be voided and the fruits of

the search excluded ….”). Federal circuit courts have

likewise applied preponderance to claims arising under the Fourth Amendment. See, e.g., Tatro v. Kervin,

41 F.3d 9, 14 (1st Cir. 1994) (“[Plaintiff] had to prove

by a preponderance of the evidence that police officers

violated his Fourth Amendment rights by arresting

him without probable cause … and by using excessive

force in their … arrest ….”).

The preponderance standard is similarly imposed on plaintiffs seeking to establish a Batson violation. See Johnson v. California, 545 U.S. 162, 170

(2005) (explaining that, at final step of Batson inquiry,

the judge must decide “whether it was more likely than

not that the challenge was improperly motivated”);

Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240,

1250–51 (11th Cir. 2014) (“[T]he burden on [plaintiff]

at Batson’s third step is to prove purposeful discrimination by a preponderance of the evidence.”).

7

Appellate courts have also applied the preponderance

standard to, among other things, ineffective-assistance-of-counsel claims. See Jones v. Campbell, 436

F.3d 1285, 1293 (11th Cir. 2006) (citing Strickland v.

Washington, 466 U.S. 668, 690 (1984)).2

Likewise, this Court consistently applies the

preponderance standard to equal protection claims,

ranging from redistricting, Harris v. Ariz. Indep. Redistricting Comm’n, 578 U.S. 253, 259 (2016) (using

“more probable than not”), to disenfranchisement,

Hunter v. Underwood, 471 U.S. 222, 225 (1985) (citing

with approval the Eleventh Circuit’s application of a

preponderance standard). Federal circuit courts have

also applied preponderance to equal-protection claims.

See, e.g., Conley v. United States, 5 F.4th 781, 789 (7th

Cir. 2021) (observing that “[e]qual protection claims

generally must be proven by a preponderance of the

evidence,” and applying that standard to racially selective-enforcement claims); McCarty v. Henson, 749

2 To determine prejudice under Brady and Strickland, the burden

imposed is even lower: a petitioner must show only a “reasonable

probability” of a different result. See Kyles v. Whitley, 514 U.S.

419, 434 (“[The] touchstone of materiality [for Brady] is a ‘reasonable probability’ of a different result, and the adjective is important.”); Strickland, 466 U.S. at 694 (holding that a new trial

must be granted if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different”). A “reasonable probability” is less

than a preponderance, and is defined as “a probability sufficient

to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985) (quoting Strickland, 466 U.S. at

694).

8

F.2d 1134, 1136 (5th Cir. 1984) (affirming application

of preponderance standard to plaintiffs’ allegations of

vote dilution in violation of the Fourteenth and Fifteenth Amendments).

This Court has also concluded that, in the First

Amendment retaliation context, there is “no support

for making any change in the nature of the plaintiff’s

burden of proving a constitutional violation,” and has

rejected the argument that a plaintiff must demonstrate improper motive by clear and convincing evidence. Crawford-El v. Britton, 523 U.S. 574, 589

(1998). Appellate courts have repeatedly affirmed that

a preponderance standard applies generally to the assertion of constitutional rights under 42 U.S.C. § 1983.

See Campbell v. Pa. Sch. Bd. Ass’n, 972 F.3d 213, 224

(3d Cir. 2020) (“[W]e have repeatedly held preponderance of the evidence to be the proper standard for

§ 1983 claims.”), cert. denied, 141 S. Ct. 2854 (2021).

This consistent use of the preponderance standard in cases involving the assertion of constitutional

rights, including those under the Eighth and Fourteenth Amendments, reflects a societal consensus regarding the appropriate allocation of risk between the

individual and government when constitutional rights

are at stake. Cf. Atkins, 536 U.S. at 313 (“[I]n cases

involving a consensus, our own judgment is ‘brought to

bear,’ by asking whether there is reason to disagree

with the judgment reached by the citizenry and its legislators.” (quoting Coker v. Georgia, 433 U.S. 584, 597

(1977))). Mr. Young’s case involves constitutional

rights under the Eighth and Fourteenth Amendments,

and the interest at stake is not only one of liberty, but

9

of life itself. The margin of error—where error is irreversible—cannot be placed on the individual asserting

his constitutional right not to be executed.

C.

Only Georgia Requires Proof Beyond A Reasonable Doubt For Intellectually Disabled Individuals To

Invoke Their Right Not To Be Executed

Georgia Code § 17-7-131(c)(3) provides: “The

defendant may be found ‘guilty but with intellectual

disability’ if the jury, or court acting as trier of facts,

finds beyond a reasonable doubt that the defendant is

guilty of the crime charged and is with intellectual disability.” If “the jury or court find[s] in its verdict that

the defendant is guilty of the crime charged but with

intellectual disability, the death penalty shall not be

imposed and the court shall sentence the defendant to

imprisonment for life.” Id. § 17-7-131(j)(2). The Georgia Supreme Court has interpreted § 17-7-131 to require a defendant to prove that he “is with intellectual

disability” beyond a reasonable doubt. See Young v.

State, 860 S.E.2d 746, 769 & n.9 (Ga. 2021).

Georgia’s requirement that an intellectually

disabled individual must bear the risk of error makes

it an outlier among the states. See Pet. at 11–17. Of

the jurisdictions that retain the death penalty, the majority impose a preponderance standard—and no other

state requires proof beyond a reasonable doubt. See

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, 560-61 & nn.22–25 (2017)

10

(collecting statutes and cases). Likewise, state supreme courts that have considered the question have

overwhelmingly held that only the preponderance

standard satisfies the Due Process Clause—and no

other state supreme court has affirmed the constitutionality of beyond a reasonable doubt. See Pet. at 11–

17 & nn.2–3.3

This outlier status is particularly meaningful in

light of this Court’s ruling in Atkins. In assessing the

“evolving standards of decency” regarding execution of

intellectually disabled individuals, the Court relied on

the significance of “the consistency of the direction of

change” in state legislatures prohibiting such executions to determine that the practice violated the

Eighth Amendment. See Atkins, 536 U.S. at 315.

Here, too, the states have spoken with a unified voice,

requiring a lesser burden of proof to assert an Atkins

claim. Cf. Cooper, 517 U.S. at 362 (“The near-uniform

application of a standard that is more protective of the

defendant’s rights than Oklahoma’s clear and convincing evidence rule supports our conclusion that the

heightened standard offends a principle of justice that

is deeply ‘rooted in the traditions and conscience of our

3 Colorado’s high court previously upheld a clear-and-convincing

standard, see People v. Vasquez, 84 P.3d 1019, 1022–23 (Colo.

2004) (en banc), but Colorado has since abolished the death penalty. See Pet. at 17 n.4. One other state supreme court—Arizona—has upheld a clear-and-convincing standard. See State v.

Grell, 135 P.3d 696, 705 (Ariz. 2006) (en banc). Neither of these

decisions suggested that beyond a reasonable doubt would be constitutional. See Pet. at 17 n.4. Florida’s high court has never

squarely addressed the constitutionality of its clear-and-convincing standard. See id.

11

people.’” (quoting Medina v. California, 505 U.S. 437,

445 (1992))); see also Moore v. Texas, 137 S. Ct. 1039,

1057 (2017) (Roberts, C.J., dissenting) (“Our decisions

addressing capital punishment for the intellectually

disabled recognize the central significance of state consensus.”); Hall v. Florida, 572 U.S. 701, 718 (2014)

(“The rejection of [Florida’s rule] in the vast majority

of States and the consistency in the trend, toward recognizing [another approach] provide strong evidence of

consensus that our society does not regard [Florida’s

rule] as proper or humane.” (internal quotation marks

and citation omitted)). This Court need not resolve

whether any lesser evidentiary burden satisfies due

process and the Eighth Amendment in order to hold

that Georgia’s use of the beyond-a-reasonable-doubt

standard does not. Georgia’s burden forces the individual seeking to vindicate his constitutional right to

disproportionately bear the risk of error, running afoul

of the consensus of the other states, Atkins, and the

Due Process Clause.

II.

Beyond a Reasonable Doubt Cannot Be

The Standard For Vindicating Constitutional Rights

Counsel for amici is not aware of any situation

in which this Court has sanctioned a state’s imposition

of the beyond-a-reasonable-doubt standard on an individual seeking to vindicate a constitutional right. In

the single instance in which this Court has permitted

a more demanding standard, it has authorized only the

imposition of the clear-and-convincing-evidence standard, and has required compelling reasons justifying

the heightened standard.

12

Georgia has no compelling reason for imposing

a heightened burden on intellectually disabled individuals asserting their right not to be executed. The

state’s interest in efficient operation of its criminal justice system can be achieved through the imposition of

a lesser burden, and the heightened burden creates an

increased risk of execution in violation of the Eighth

Amendment—which is irreversible.

A.

A Compelling Reason Must Exist To

Impose A Heightened Burden

The only instance in which this Court has sanctioned the imposition of a heightened burden for the

vindication of a constitutional right underscores its

singularity, and the concomitant need for a compelling

reason to do so. See Cruzan v. Dir., Mo. Dep’t of

Health, 497 U.S. 261, 280–83 (1990).

Cruzan applied the clear-and-convincing burden because the case involved the interest in life, and

the right asserted (to withdraw life support) was being

maintained by a surrogate, rather than the individual

herself. Id. at 280. This Court explained that a state

is entitled to impose a heightened burden on a surrogate seeking to demonstrate someone else’s wishes,

particularly where “[a]n erroneous decision … is not

susceptible of correction.” Id. at 283.

This limited exception underscores that the default standard of proof to prove facts underlying the

assertion of a constitutional right is preponderance.

Only when that standard may compromise other constitutional rights or imperatives has this Court permitted deviation from the preponderance standard.

13

B.

Georgia Has No Compelling Reason

For Imposing A Heightened Burden

Georgia lacks any comparable compelling reason for imposing a greater burden on an intellectually

disabled individual invoking his right not to be executed. The risk involved—that of wrongful, irreversible execution—supports imposing a higher burden on

the state, not the individual. Cf. Gilmore v. Taylor,

508 U.S. 333, 342 (1993) (“[W]e have held that the

Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a noncapital

case.”).

That risk is not merely hypothetical: since

1973, more than 185 people have been released from

death row with evidence of their innocence. See Facts

About the Death Penalty, DEATH PENALTY INFO. CTR.,

https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf (last updated Dec. 9, 2021). Put another

way, an average of 3.94 wrongly convicted death-row

prisoners have been exonerated each year since 1973.

Id.

The risk of error is compounded in cases involving defendants with intellectual disabilities. This

Court recognized in Atkins that defendants with intellectual disabilities “may be less able to give meaningful assistance to their counsel and are typically poor

witnesses.” 536 U.S. at 320–21. In much the same

way that intellectually disabled individuals are less

able to help their defense, they are less able to help

prove their intellectual disability. Raising the burden

of proof to achieve that end is counterintuitive and

cruel, in contravention of the Eighth Amendment.

14

The record of Georgia’s post-Atkins cases suggests a risk that individuals with intellectual disability might have been, or might be, sentenced to death

in violation of their Eighth Amendment right not to be

executed. See Pet. at 18 (explaining that only one out

of eighteen asserted Atkins claims in Georgia has succeeded through 2014, whereas Atkins claims outside of

Georgia have succeeded at a rate of approximately one

in three (citing John H. Blume et al., A Tale of Two

(and Possibly Three) Atkins, 23 WM. & MARY BILL RTS.

J. 393, 412–13 (2014))).4

States can regulate procedural burdens, see

Bobby v. Bies, 556 U.S. 825, 831 (2009), but that power

is “subject to proscription under the Due Process

Clause if it ‘offends some principle of justice so rooted

in the traditions and conscience of our people as to be

ranked as fundamental,’” Cooper, 517 U.S. at 367

(quoting Patterson, 432 U.S. at 201–02). Atkins definitively established that “death is not a suitable punishment for a[n intellectually disabled] criminal,” 536

U.S. at 321, and the Due Process Clause demands that

this Court examine “whether a State’s procedures for

4 Georgia’s provision of additional procedures for establishing an

Atkins claim does not mitigate the impact of its heightened burden. The Georgia Supreme Court noted in its decision that, although this Court has never deemed due process to require a full

trial on the issue of intellectual disability, Georgia nevertheless

provides that full panoply of protections to individuals charged

with capital crimes who seek to assert their Eighth Amendment

right under Atkins. Pet. App. at 48a. A trial serves no practical

protective purpose, however, where the burden of proof imposed

on an individual is so high that he has no reasonable chance of

vindicating his constitutional right.

15

guaranteeing a fundamental constitutional right are

sufficiently protective of that right,” Cooper, 517 U.S.

at 367–68. Georgia’s heightened burden has effectively, and impermissibly, nullified the constitutional

right guaranteed by the Eighth Amendment. Cf. Bailey v. Alabama, 219 U.S. 219, 244 (1911) (“What the

state may not do directly it may not do indirectly.”).

Numerous judges on the Eleventh Circuit and

on the Supreme Court of Georgia have, in concurrences and dissents, condemned Georgia’s procedure

for these reasons. See Raulerson v. Warden, 928 F.3d

987, 1009 (11th Cir. 2019) (Jordan, J., concurring in

part and dissenting in part) (“[Georgia’s] burden of

proof creates an intolerable risk that intellectually disabled defendants will be put to death.”), cert. denied,

140 S. Ct. 2568 (2020);5 Hill v. Humphrey, 662 F.3d

1335, 1364 (11th Cir. 2011) (Tjoflat, J., concurring)

(“By erecting this higher burden, [Georgia] effectively

put its thumb on the scale against a defendant’s mental-retardation defense.”), cert. denied, 566 U.S. 1041

(2012); id. at 1365 (Barkett, Marcus, and Martin, JJ.,

dissenting) (“Although Georgia was the first state to

declare that the mentally retarded should not be executed, it is the only one to guarantee precisely the opposite result by requiring offenders to prove beyond a

reasonable doubt that they are mentally retarded.”);

Stripling v. State, 711 S.E.2d 665, 671 (Ga. 2011)

5 The majority in Raulerson held that the lower court’s determi-

nation that Georgia’s burden of proof did not violate the Due Process Clause was not an unreasonable application of clearly established federal law under “the deferential framework imposed by

section 2254(d)(1),” 928 F.3d at 1000, but this case presents the

opportunity to review the Georgia statute on direct review.

16

(Benham, J., dissenting in part) (“Today Georgia

stands alone in severely inhibiting Eighth Amendment

protections by applying the most stringent standard

available in our system of justice …. Georgia’s requirement … is too rigorous a standard to sufficiently uphold th[e] constitutional protection [established by Atkins].”); Head v. Hill, 587 S.E.2d 613, 628 (Ga. 2003)

(Sears, J., dissenting) (“[T]he state’s power to establish

the procedures necessary to enforce the federal constitutional ban on executing the mentally retarded is not

left to the state’s wholesale discretion, but rather must

conform to the United States Constitution’s guarantee

of procedural due process. The majority errs by holding otherwise.”).

Moreover, the risk borne by the state as a result

of lessening the burden imposed on the individual is

comparatively slight: an erroneous decision would

mean the individual spends life in prison, rather than

being executed. Such a result would continue to serve

the state’s interest in maintaining its criminal justice

system and public safety.6 The unanimity of the other

6 It would also save the state—and the taxpayers—extraordinary

sums of money. The financial cost of the death penalty is exorbitant: Louisiana’s capital punishment system, for example, costs

the state at least $15,600,000 per year. Hon. Calvin Johnson, An

Analysis of the Economic Cost of Maintaining a Capital Punishment System in the Pelican State at 1 (2019),

https://law.loyno.edu/sites/default/files/economic_cost_paper_la_5.1.2019.pdf. Capital trials cost millions of dollars to prosecute and post-conviction review costs millions of dollars to litigate—significantly more than non-capital prosecutions. See

Adam M. Gershowitz, Pay Now, Execute Later: Why Counties

Should Be Required to Post a Bond to Seek the Death Penalty, 41

U. RICH. L. REV. 861, 890 (2007) (collecting studies); see also

17

states, in imposing a lesser burden than beyond a reasonable doubt in order to establish intellectual disability under Atkins, further underscores that states can

efficiently administer their criminal justice systems

with a lower standard of proof.

***

CONCLUSION

For the foregoing reasons, the Court should

grant the writ of certiorari or, in the alternative, grant

the writ, vacate the decision and remand for further

proceedings.

Jenny-Brooke Condon, Denialism and the Death Penalty, 97

WASH. U. L. REV. 1397, 1424 n.172 (2020).

18

Dated: New York, NY

December 27, 2021

Respectfully submitted,

JOHN W. WHITEHEAD

WILLIAM E. WINTERS

THE RUTHERFORD

INSTITUTE

109 Deerwood Road

Charlottesville, VA

22911

(434) 978-3888

Attorneys for Amicus

Curiae The Rutherford

Institute

CAITLIN HALLIGAN

Counsel of Record

HANNAH BELITZ

CLAIRE O’BRIEN

DENAE KASSOTIS

DOUGLAS WAGNER

SELENDY & GAY PLLC

1290 Avenue of the

Americas

New York, New York

10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amici Curiae

19