Amicus Curiae Brief — Heather Leavell-Keaton, Petitioner v. Alabama

No. 22-6895

IN THE

Supreme Court of the United States

HEATHER LEAVELL-KEATON,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

ALABAMA COURT OF CRIMINAL APPEALS

Brief of Former Corrections Officials as Amici

Curiae in Support of Petitioner

JERRY YAN

MUNGER, TOLLES & OLSON LLP

350 South Grand Avenue

50th Floor

Los Angeles, CA 90071

(213) 683-9100

DONALD B. VERRILLI, JR.

Counsel of Record

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

donald.verrilli@mto.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICI ..................................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..................................................... 5

ARGUMENT ................................................................ 7

I.

II.

Skipper evidence helps ensure that

death sentences are reliable, accurate,

and nonarbitrary. .............................................. 7

A.

Skipper evidence is highly

relevant. .................................................. 8

B.

Skipper evidence is highly

reliable. ................................................... 9

C.

Skipper evidence remains

important, relevant, and reliable

at resentencing hearings. ..................... 11

Skipper’s rule makes prisons safer for

inmates and staff. ........................................... 13

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

ii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Barefoot v. Estelle,

463 U.S. 880 (1983) .............................................. 11

Davis v. Ayala,

576 U.S. 257 (2015) .............................................. 15

Eddings v. Oklahoma,

455 U.S. 104 (1982) ................................................ 7

Gregg v. Georgia,

428 U.S. 153 (1976) ............................................ 6, 7

Hitchcock v. Dugger,

481 U.S. 393 (1987) ................................................ 5

Jones v. Mississippi,

141 S. Ct. 1307 (2021) .......................................... 12

Jurek v. Texas,

428 U.S. 262 (1976) ................................................ 8

Lockett v. Ohio,

438 U.S. 586 (1978) ............................................ 6, 7

Miller v. Alabama,

567 U.S. 460 (2012) .............................................. 12

Montgomery v. Louisiana,

577 U.S. 190 (2016) .............................................. 12

Polk Cnty. v. Dodson,

454 U.S. 312 (1981) .............................................. 11

iii

TABLE OF AUTHORITIES

Page(s)

Saffle v. Parks,

494 U.S. 484 (1990) ................................................ 7

Skipper v. South Carolina,

476 U.S. 1 (1986) ............................ 5, 7, 8, 9, 11, 13

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 14

Woodson v. North Carolina,

428 U.S. 280 (1976) .............................................. 16

STATE STATUTES

Ala. Code § 15-18-81 .................................................. 15

OTHER AUTHORITIES

Stephen P. Garvey, Aggravation and

Mitigation in Capital Cases: What Do

Jurors Think?, 98 Colum. L. Rev.

1538 (1998) ......................................................... 8, 9

Terry A. Kupers & Emmitt Sparkman et

al., Beyond Supermax Administrative

Segregation: Mississippi's Experience

Rethinking Prison Classification and

Creating Alternative Mental Health

Programs, 36 Crim. Just. & Behavior

1037 (2009) ........................................................... 16

iv

TABLE OF AUTHORITIES

Page(s)

George Lombardi, Richard D. Sluder &

Donald Wallace, Mainstreaming

Death-Sentenced Inmates: The

Missouri Experience and Its Legal

Significance, 61 Fed. Probation 3

(1997) .................................................................... 17

Gabriella Robles, Condemned to Death And Solitary Confinement, The

Marshall Project (July 23, 2017),

https://www.themarshallproject.org/2

017/07/23/condemned-to-death-andsolitary-confinement............................................. 15

U.S. Dep’t of Justice, Investigation of

Alabama’s State Prisons for Men

(Apr. 2, 2019),

https://www.justice.gov/opa/pressrelease/file/1150276/download ............................. 14

1

INTERESTS OF THE AMICI 1

Amici are former corrections officials, each with decades of experience working in corrections facilities

across the country. Many of the amici have also

worked with death-sentenced inmates and have testified at sentencing and resentencing hearings regarding inmates’ behavior while incarcerated. Amici also

consult with States on how to improve prison administration to make prisons safer for both inmates and

corrections staff.

Based on their experience in corrections, amici believe that corrections officers’ testimony about a defendant’s behavior while incarcerated is highly reliable evidence of the defendant’s character that goes directly to whether he should be sentenced to death. Permitting such testimony at sentencing and resentencing hearings therefore not only vindicates a capital defendant’s constitutional right to put forward all available mitigating evidence but also furthers this Court’s

goal of ensuring that capital sentencing is reliable, accurate, and nonarbitrary.

As experts in prison administration, amici also have

an interest in ensuring that prisons are well-run and

safe. Amici believe that Skipper makes prisons safer

by giving inmates reason to care about their futures

and believe that their actions matter. In amici’s experience, taking hope and belief away from inmates—as

prisons can do all too easily—makes inmates more

likely to break rules and makes new inmates less

likely to make well-behaved and peaceful adjustments

to life in prison. Amici are accordingly concerned that

1

Pursuant to Rule 37, counsel for amici affirm that all parties

were timely notified of the filing of this brief. No part of this brief

was authored by any party’s counsel, and no person or entity

other than amici funded its preparation or submission.

2

artificially limiting the scope of Skipper’s rule, as the

court below did, will expose inmates and prison staff

to a higher risk of violence and harm.

Amici are:

Scott Frakes is the former Director of the Nebraska

Department of Correctional Services and was appointed to the position by former Governor Pete Ricketts. He has over 40 years of corrections experience,

during which he held line and supervisory positions in

Washington State. He also oversaw executions in both

States and personally carried out an execution in Nebraska. He is currently an expert corrections consultant.

Stephen Huffman is a former assistant director,

regional director, and warden in the Ohio Department

of Rehabilitation and Correction. He was appointed by

former Governor John Kasich to serve as assistant director after over 30 years of serving in correctional facilities in both Ohio and Texas. Mr. Huffman also oversaw many executions in Ohio. He currently serves as

a corrections expert and testifies regularly as an expert witness in state and federal court.

Patrick Hurley is a former prison warden in Ohio.

He has over 35 years of experience in adult and juvenile corrections, during which he held line and supervisory positions in the Ohio corrections system. Since

leaving the Ohio Department of Rehabilitation and

Corrections, Mr. Hurley has served as an expert corrections consultant and testifies regularly in state and

federal court.

Steve J. Martin, J.D., is the former General Counsel of the Texas Department of Corrections and has

worked as a correctional officer on death row. During

his fifty year career in correctional administration he

has served gubernatorial appointments in Texas on

3

both a sentencing commission and a council for mentally impaired offenders. He has served various appointments as a federal court monitor for jails, prisons,

and juvenile facilities. He also served as an expert for

the civil rights divisions of both the U.S. Departments

of Justice and Homeland Security. He coauthored the

book, Texas Prisons: The Walls Came Tumbling Down

(Texas Monthly Press, 1987) and has written numerous articles on criminal justice issues. He has been on

the visiting faculties of seven universities, including

the University of Texas School of Law and Queens

University, Belfast.

Dan Pacholke is the former Secretary of the Washington State Department of Corrections. He has over

30 years of corrections experience, during which he

held line and supervisory positions at all levels in the

Washington State corrections system. He now serves

as an expert consultant on prison conditions and practices, including on death row placement and housing

policies.

Emmitt Sparkman is the former Deputy Commissioner for Institutions for the Mississippi Department

of Corrections. He has over 40 years of corrections experience, during which he held line and supervisory

positions in Texas, Kentucky, and Mississippi. Mr.

Sparkman also served as the superintendent of the

Mississippi State Penitentiary, which includes a supermax facility that houses death row and highest-risk

offenders. Mr. Sparkman now serves as an expert consultant and is regularly retained to testify in resentencing hearings and cases regarding prison conditions.

Eldon Vail is the former Secretary of the Washington State Department of Corrections. He has 35 years

of experience serving at all levels in the Washington

State corrections system, including as superintendent

4

of three adult institutions, including two facilities with

maximum-security inmates. For the last ten years,

Mr. Vail has served as an expert witness and correctional consultant and has been retained over 60 times

in 24 States.

5

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents an important question about

what evidence a capital defendant can introduce at her

own sentencing hearing. After her initial capital sentence was invalidated, Ms. Leavell-Keaton sought to

offer at her resentencing hearing over five years’ worth

of testimony about her good behavior while incarcerated. This Court’s decision in Skipper v. South Carolina, 476 U.S. 1 (1986), plainly would have entitled Ms.

Leavell-Keaton to offer evidence of such good behavior

at her initial sentencing hearing. Id. at 4-5; see also

Hitchcock v. Dugger, 481 U.S. 393, 395 (1987). The resentencing judge, however, excluded the testimony

and sentenced Ms. Leavell-Keaton to death without

any evidence about her character and comportment

during the five years leading up to the hearing. Pet. 57. Because there is no constitutional distinction between a sentencing hearing and a resentencing hearing that warrants excluding evidence that is “by its nature relevant to the sentencing determination,” Skipper, 476 U.S. at 7, this Court should grant certiorari

and hold that Ms. Leavell-Keaton is entitled to offer

evidence of her own conduct while incarcerated at her

own resentencing hearing.

The Alabama Court of Criminal Appeals’ misunderstanding of an important Eighth Amendment principle

in a capital case is important enough on its own to warrant this Court’s review. Amici submit this brief to

stress two additional points: (1) Skipper evidence is

important because it provides a sentencer with highly

relevant and highly reliable evidence of the individual

defendant’s character; and (2) artificially limiting

Skipper’s reach makes prisons less safe by stripping

hope from prisoners and decreasing the likelihood that

they will adjust well to prison life.

6

First, Skipper evidence is important because it ensures that capital sentencing is both individualized

and reliable. This Court has long held that capital sentencing proceedings must focus on the individual defendant’s “particularized characteristics.” Gregg v.

Georgia, 428 U.S. 153, 206 (1976). And because human

life is at stake, the Constitution requires “a greater degree of reliability when the death sentence is imposed.”

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality).

Skipper evidence, typically provided by current or former corrections officials, furthers both objectives by

providing highly reliable evidence of individual defendants’ character. Corrections staff have no incentive to misrepresent an inmate’s behavior, can closely

observe inmates’ behavior while they are incarcerated,

and can draw upon their experience working with

other inmates to offer sentencers informed and reliable testimony about whether a particular inmate is a

danger to others.

Second, Skipper helps make prisons safer by giving

prisoners reason to believe that their behavior matters. In amici’s experience, depriving inmates of hope

for the future makes them more likely to break rules

and makes new inmates less likely to make well-behaved and peaceful adjustments to life in prison.

Prison conditions and administration practices in

many States, including Alabama, also exacerbate inmates’ feelings of hopelessness by keeping death row

inmates in isolation in tiny cells for over 20 hours a

day for years on end. By offering inmates reason to

care about themselves and their futures, Skipper may

help inmates adjust to prison life and the challenges

associated with it. Artificially limiting the scope of

Skipper’s rule, as the court below did, exposes inmates

and corrections staff alike to a higher risk of violence

and harm.

7

ARGUMENT

I.

Skipper evidence helps ensure that death

sentences are reliable, accurate, and

nonarbitrary.

For nearly half a century, this Court has consistently

held that capital sentencing must focus on “the particularized characteristics of the individual defendant.”

Gregg v. Georgia, 428 U.S. 153, 206 (1976). To that

end, a capital defendant has a constitutional right to

introduce relevant mitigating evidence at his sentencing hearing—that is, evidence of “any aspect of [his]

character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.” Eddings v. Oklahoma, 455 U.S.

104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586,

604 (1978) (plurality)). Consistent with this principle,

this Court held in Skipper v. South Carolina, 476 U.S.

1 (1986), that a capital defendant has a constitutional

right to present evidence of his “well-behaved and

peaceful adjustment to life in prison” to prove that “he

would pose no undue danger to his jailers or fellow

prisoners and could lead a useful life behind bars.” Id.

at 7.

At the same time, this Court has stressed that

“above all, capital sentencing must be reliable, accurate, and nonarbitrary.” Saffle v. Parks, 494 U.S. 484,

493 (1990). Skipper’s rule improves the accuracy and

fairness of capital sentencing because evidence of a defendant’s behavior while incarcerated, typically offered through the testimony of corrections staff, is

highly reliable. Admitting Skipper evidence therefore

helps ensure that capital sentencing is reliable, accurate, and nonarbitrary.

8

A.

Skipper evidence is highly relevant.

“It can hardly be disputed” that evidence of a capital

defendant’s good behavior while incarcerated is relevant evidence of a capital defendant’s character. Skipper, 476 U.S. at 4. If a defendant offers testimony that

he behaved as a model inmate while incarcerated, the

sentencer can draw “favorable inferences from this testimony regarding [the defendant’s] character and his

probable future conduct if sentenced to life in prison.”

Id.. Capital sentencers frequently consider whether

the defendant is likely to be a danger to others in the

future before deciding what sentence to impose. See,

e.g., Jurek v. Texas, 428 U.S. 262, 272, 274-276 (1976)

(upholding Texas law asking capital sentencing juries

to determine “whether there is a probability that the

defendant would commit criminal acts of violence that

would constitute a continuing threat to society”). Just

as evidence of whether a defendant has acted violently

towards other inmates and corrections staff is plainly

relevant to determining whether a defendant would be

a danger to others and therefore relevant to determining whether he deserves to be sentenced to death, so

too evidence of a capital defendant’s exemplary adjustment to incarceration is plainly relevant to determining whether a defendant should be spared from execution.

Jurors accord evidence of defendants’ behavior while

incarcerated significant weight. One study that surveyed 153 jurors who served on death-qualified sentencing juries found that 26% of jurors said they would

be less likely to impose the death penalty if the defendant proved that he “would be a well-behaved inmate.”

Stephen P. Garvey, Aggravation and Mitigation in

Capital Cases: What Do Jurors Think?, 98 Colum. L.

Rev. 1538, 1559 table 4 (1998). To be sure, the jurors

did not give Skipper evidence dispositive weight: other

9

factors, such as a defendant’s history of violent behavior or mental illness, were more likely to change a juror’s vote. Ibid. Nevertheless, the fact remains that a

defendant’s good behavior and nonviolence while incarcerated can sway jurors to vote for a sentence less

than death, making Skipper evidence an important

part of a capital defendant’s sentencing case.

B.

Skipper evidence is highly reliable.

Skipper’s rule also makes capital sentencing more

accurate and reliable. Many defendants who introduce

Skipper evidence do so through the testimony of corrections staff who monitored and evaluated them

while they were incarcerated. See, e.g., Skipper, 476

U.S. at 3 (“Petitioner . . . sought to introduce testimony

of two jailers . . . .”). Such testimony is uniquely objective evidence of a defendant’s character because corrections staff, unlike many other character witnesses

who testify at sentencing hearings, have “no particular

reason to be favorably predisposed toward one of their

charges.” Id. at 8. Corrections staff can therefore be

trusted to give impartial testimony that accurately reflects their observations and opinions about a particular defendant’s character.

Corrections officials also have significant expertise

in observing and evaluating inmates’ behavior. Many

prisons around the country employ classification systems that assign inmates to a certain level of custody

depending on the risk they pose. These classification

systems depend in part on fixed criteria, such as an

inmate’s criminal history prior to incarceration. But

much of the evaluation depends on staff assessments

and observations of inmates while they are incarcerated, including their compliance with prison rules, relationships with other inmates and prison personnel,

progress towards obtaining a GED, religious observance, job performance, participation in therapy or

10

counseling, and more. To implement inmate classification systems, staff receive extensive training on how to

observe, document, and assess inmate behavior while

incarcerated. Officers, mental health experts, prison

administrators, and other prison staff all work together closely to evaluate all available information

and make a final determination as to an inmate’s classification and degree of risk to others. By collaborating

with a wide array of experts, corrections staff develop

interdisciplinary, holistic approaches for evaluating

inmates that accurately capture an inmate’s character. In sum, corrections staff are experts at monitoring

inmates and determining whether they are likely to be

dangerous to others.

Trained corrections officers and staff can then apply

their training and expertise to provide sentencers with

invaluable insight into a capital defendant’s character

and risk to others. Corrections officers and staff closely

monitor capital inmates for months, if not years prior

to sentencing or resentencing. During that time, officers and staff accumulate extensive knowledge of a capital defendant’s behavior and are constantly evaluating the risk that particular inmate poses to others.

Prison personnel also can compare their observations

of a capital inmate against their past experiences with

other inmates to make informed predictions about how

a capital inmate is likely to behave in the future after

sentencing. In sum, prison staff have ample training

and opportunity to develop reliable and insightful

opinions about whether an inmate is dangerous and

likely to harm others in the prison in the future.

Finally, both proper training and the adversarial

system reduce the risk that a sentencer might be hoodwinked into showing mercy based on a defendant’s

good behavior in prison. Corrections staff are trained

to evaluate all aspects of an inmate’s behavior and are

11

unlikely to trust inmates naïvely. Moreover, Skipper’s

rule is a two-way street: While defendants can offer

evidence of their good behavior, prosecutors can also

offer evidence of defendants’ bad behavior. See Pet. 1719 (“Alabama courts have always allowed prosecutors

to introduce new evidence at judicial sentencing hearings.”). Indeed, in Skipper itself, the prosecutor argued

that the fact that the defendant had kicked the bars of

his cell following his arrest proved that he was likely

to commit violent crimes in prison if allowed to live.

Skipper, 476 U.S. at 9-10 (Powell, J., concurring in the

judgment). This Court has long recognized that this

kind of adversarial testing, where both parties offer

relevant evidence for a decisionmaker to weigh, can be

trusted to “sort out the reliable from the unreliable evidence . . . , particularly when the convicted felon has

the opportunity to present his own side of the case.”

Barefoot v. Estelle, 463 U.S. 880, 901 (1983), superseded by statute on other grounds. Skipper does exactly

that: it permits both sides to present complete cases

and enables the sentencer to make a final, reasoned

judgment in full view of the relevant evidence. In so

doing, Skipper makes capital sentencing decisions

more reliable, both because Skipper evidence offered

through corrections officers is itself highly credible and

because it facilitates the adversarial process that this

Court has long trusted to “advance the public interest

in truth and fairness,” Polk Cnty. v. Dodson, 454 U.S.

312, 318 (1981), and distinguish between reality and

pretense. Cf. Barefoot, 463 U.S. at 899.

C.

Skipper evidence remains important, relevant, and reliable at resentencing hearings.

Skipper evidence remains relevant and reliable at

capital resentencing hearings where sentencers decide

anew whether to impose a death sentence. Indeed,

12

courts routinely permit similar evidence of defendants’

behavior while incarcerated at noncapital resentencing hearings. Since Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 577 U.S. 190

(2016), courts throughout the country have held resentencing hearings for individuals who were sentenced

to life without parole for crimes they committed as juveniles to determine whether those individuals are incorrigible. See Montgomery, 577 U.S. at 190; see also

id. at 206 (holding that “Miller announced a substantive rule that is retroactive in cases on collateral review”). In one appeal from such a resentencing recently before this Court, the petitioner offered testimony from a corrections officer regarding petitioner’s

behavior during his decade-long incarceration, including his religious observance, disciplinary record, relationships with other inmates and prison staff, and

commitment to self-improvement through pursuing

and obtaining a GED. Pet. Br. at 5-6, Jones v. Mississippi, 141 S. Ct. 1307 (2021) (No. 18-1259). If the resentencing record had been cut off at the initial sentencing hearing, as it was here, then the sentencer

would have had no sense of the petitioner’s current

character and whether he demonstrated improvement

while incarcerated. It would have been impossible for

the sentencer to determine whether the petitioner was

incorrigible. Evidence of a capital defendant’s behavior

while incarcerated fills an identical gap in the evidentiary record at capital resentencing hearings.

The facts of this case underscore the continued importance of Skipper’s rule at resentencing hearings.

First, the testimony at issue is extremely probative of

Ms. Leavell-Keaton’s character given the length of her

incarceration. At the time of her resentencing in 2021,

Ms. Leavell-Keaton was 33 and had been incarcerated

for over five years, or over one-third of her adult life.

13

While incarcerated, she has been a model inmate, presented no threats to anyone’s safety, fostered meaningful relationships with other inmates and family members, and pursued opportunities for self-improvement.

Pet. 4-5. A sentencer could have easily “drawn favorable inferences from this testimony regarding [Ms.

Leavell-Keaton’s] character and [her] probable future

conduct if sentenced to life in prison,” Skipper, 476

U.S. at 4, and the sentencing judge’s assessment of her

character is woefully incomplete without at least considering Ms. Leavell-Keaton’s proffered testimony.

Had the opposite been true—that is, had Ms. LeavellKeaton exhibited violent or antisocial behavior during

this same period of incarceration—there is little doubt

that such evidence would have been admissible to support a claim by the State that she presented a continuing danger if not executed. That being so, it must necessarily also be the case that evidence of Ms. LeavellKeaton’s exemplary behavior during that period is admissible to establish the opposite.

Second, the testimony at issue is especially credible.

Officers and staff monitored Ms. Leavell-Keaton for

five years, accumulating extensive evidence and documentation of her behavior that is plainly sufficient to

support well-informed opinions regarding her character. Permitting the testimony at issue at Ms. LeavellKeaton’s resentencing would therefore achieve two vitally important goals: it would vindicate her right to

present all the relevant mitigating evidence available

to her and help ensure that the sentencing decision in

her case is reliable, accurate, and nonarbitrary.

II.

Skipper’s rule makes prisons safer for inmates and staff.

Throughout their careers as corrections officers,

prison administrators, and expert consultants, amici

have worked to make prisons safer for both inmates

14

and prison staff. “Running a prison is an inordinately

difficult undertaking that requires expertise, planning, and the commitment of resources.” Turner v.

Safley, 482 U.S. 78, 84-85 (1987). Keeping a prison safe

is all the more difficult because of staffing shortages in

prisons throughout the nation. For example, the Alabama Department of Corrections acknowledged as recently as 2019 that it needed to hire over 2,000 correctional officers and 125 supervisors to adequately staff

its men’s prisons. U.S. Dep’t of Justice, Investigation

of Alabama’s State Prisons for Men at 9 (Apr. 2, 2019),

https://www.justice.gov/crt/case-document/file/1149

971/download. Simply put, corrections officers have

hard jobs—and need whatever help they can get.

Skipper helps corrections officers perform their duties in two critical ways. First, it encourages inmates

to transition to prison life peacefully by giving inmates

reason to hold on to hope and believe that their actions

matter. Second, it improves inmate morale by treating

inmates as human beings.

1. Keeping everybody in a prison safe requires a significant degree of voluntary compliance with prison

rules on the part of inmates. It is therefore essential to

prison safety that inmates make peaceful, well-behaved transitions to life in prison and, to the extent

possible, are motivated by something other than officers’ actions to comply with prison rules.

In amici’s experience, however, inmates are far less

likely to transition peacefully to prison life and behave

well when they have no reason to believe that their actions or behavior matter—that is, when they have no

hope for the future. Amici found while working in prisons that inmates without reason to care about the rest

of their lives—typically, those serving mandatory sentences with no possibility of parole—are more likely to

join gangs in prison and commit serious rule violations

15

than inmates who continue to believe in the importance of self-improvement are. Holding onto hope,

however, is hard for many capital inmates because life

on death row can be extraordinarily difficult and traumatizing. Most capital inmates, including those in Alabama, are held in solitary confinement in tiny cells

no larger than a parking spot for over 20 hours a day

for years on end. Ala. Code § 15-18-81; see Davis v.

Ayala, 576 U.S. 257, 286-290 (2015) (Kennedy, J., concurring); Gabriella Robles, Condemned to Death – And

Solitary Confinement, The Marshall Project (July 23,

2017),

https://www.themarshallproject.org/2017/07/

23/condemned-to-death-and-solitary-confinement.

Skipper makes prisoners more likely to transition

peacefully to prison life. By giving inmates the opportunity to introduce evidence of their good behavior

while incarcerated, Skipper gives inmates reason to

believe that their behavior and actions matter and encourages them to make a peaceful transition to life in

prison and behave well. To be clear, amici are not suggesting that the possibility of a reduced sentence based

on good behavior in prison can transform incorrigible

defendants into model inmates. Rather, amici believe

that capital defendants who are capable of peacefully

adjusting to prison life and behaving well would be less

likely to do so without any reason to care about their

futures. Limiting Skipper’s reach, as the court below

did here, makes it harder for inmates to care about

themselves and harder for corrections officers to do

their jobs.

2. Skipper also makes prisons safer by treating inmates as individual human beings. This Court has

long recognized that the “fundamental respect for humanity” that underlies the Eighth Amendment requires sentencers to consider the “character and record

of the individual offender and the circumstances of the

16

particular offense.” Woodson v. North Carolina, 428

U.S. 280, 304 (1976). Consistent with the Eighth

Amendment’s underlying principles, Skipper’s rule respects capital defendants’ humanity by admitting reliable and important evidence of defendants’ character

and individual traits before a sentencer inflicts the

most severe punishment that our society permits.

Respecting capital defendants’ humanity is not only

consistent with constitutional principles but also good

prison policy. Based on their decades of experience

working in and running prisons, amici strongly believe

that prisons are safer and easier to run when inmates

are treated with dignity and recognized as human beings. For example, after an explosion of inmate violence in a Mississippi super-maximum prison facility

under his watch, then-Deputy Commissioner Emmitt

Sparkman moved to the area and spent months walking among the inmates and getting to know their personal stories before moving them out of solitary confinement and back into the general prison population.

Terry A. Kupers & Emmitt Sparkman et al., Beyond

Supermax Administrative Segregation: Mississippi’s

Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs, 36 Crim.

Just. & Behavior 1037, 1040 (2009). Within months of

his and others’ work overhauling the prison’s solitary

confinement practices and peer counseling programs,

inmate violence fell by 70% and the rate of inmate incidents requiring officers’ use of force plummeted as

well. Id. at 1041-46. Other jurisdictions that have

taken similar steps to treat inmates, including death

row inmates, with respect and dignity have observed

similar results. In 1991, Missouri integrated death

row inmates with the general prison population and

saw immediate benefits, including cost savings, im-

17

proved inmate morale, and fewer disciplinary incidents. George Lombardi, Richard D. Sluder & Donald

Wallace, Mainstreaming Death-Sentenced Inmates:

The Missouri Experience and Its Legal Significance, 61

Fed. Probation 3, 5-7 (1997).

These results confirm that prisons are safer when

they treat death row inmates as human beings rather

than as objects to be locked away until their execution

dates. Barring defendants from presenting reliable

and important evidence of their own character and individual traits at their resentencing hearings has exactly the opposite effect: it denies inmates their basic

human right to defend themselves and be treated as

individual human beings by a court of law. Arbitrarily

limiting Skipper’s rule therefore makes it harder for

prison officials to do their jobs and makes prisons less

safe for inmates, officers, and staff. This Court should

grant certiorari, restore the proper scope of Skipper,

and ensure that capital sentencings and resentencings

continue to respect inmates’ basic humanity.

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JERRY YAN

MUNGER, TOLLES & OLSON LLP

350 South Grand Avenue

50th Floor

Los Angeles, CA 90071

(213) 683-9100

DONALD B. VERRILLI, JR.

Counsel of Record

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

donald.verrilli@mto.com

Counsel for Amici Curiae

MARCH 31, 2023