Amicus Curiae Brief — John Q. Hamm, Commissioner, Alabama Department of Corrections, Petitioner v. Joseph Clifton Smith

No. 23-167

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------COMMISSIONER, ALABAMA

DEPARTMENT OF CORRECTIONS,

Petitioner,

v.

JOSEPH CLIFTON SMITH,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

---------------------------------♦--------------------------------BRIEF OF IDAHO AND 13 OTHER STATES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------RAÚL R. LABRADOR

Attorney General

IDAHO OFFICE OF THE

ATTORNEY GENERAL

700 W. Jefferson St.

Suite 210

Boise, ID 83720

(208) 334-2400

josh.turner@ag.idaho.gov

THEODORE J. WOLD

Solicitor General

JOSHUA N. TURNER

Chief Deputy

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of Idaho

[Additional Counsel Listed On Inside Cover]

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TIM GRIFFIN

Attorney General

State of Arkansas

MICHAEL T. HILGERS

Attorney General

State of Nebraska

ASHLEY MOODY

Attorney General

State of Florida

DREW WRIGLEY

Attorney General

State of North Dakota

KRIS W. KOBACH

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

JEFF LANDRY

Attorney General

State of Louisiana

MARTY JACKLEY

Attorney General

State of South Dakota

LYNN FITCH

Attorney General

State of Mississippi

KEN PAXTON

Attorney General

State of Texas

ANDREW BAILEY

Attorney General

State of Missouri

SEAN REYES

Attorney General

State of Utah

AUSTIN KNUDSEN

Attorney General

State of Montana

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

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

ii

INTRODUCTION AND INTERESTS OF AMICI

CURIAE ............................................................

1

SUMMARY OF THE ARGUMENT .....................

2

REASONS FOR GRANTING CERTIORARI .......

3

I.

II.

The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions And Deepens

A Circuit Split ...........................................

3

The Eleventh Circuit’s Decision Is An

Outgrowth Of The Evolving Standards

Of Decency Jurisprudence, Which Is Not

Textual, Historical, Or Logical ..................

7

A. The evolving standards of decency jurisprudence came out Warren Court

dicta and has been promoted to the

substantive test for Eighth Amendment meaning ......................................

8

B. The evolving standards of decency jurisprudence is a lawless standard that

has no regard for any of this Court’s

Eighth Amendment precedents ........... 11

C. The evolving standards of decency jurisprudence cannot be squared with

the text, structure, and history of the

Eighth Amendment ............................. 15

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)......... 3, 4, 12, 13

Bartkus v. Illinois, 359 U.S. 121 (1959) .........................6

Baze v. Rees, 553 U.S. 35 (2008) ........................... 17, 18

Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017) .........7

Bucklew v. Precythe, 139 S. Ct. 1112 (2019)..... 8, 15, 16

Calderon v. Thompson, 523 U.S. 538 (1998) .............. 5

Coker v. Georgia, 433 U.S. 584 (1977) ........................14

Dobbs v. Jackson Women’s Health Org., 142

S. Ct. 2228 (2022) ....................................................16

Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir.

2019) ........................................................................14

Estelle v. Gamble, 429 U.S. 97 (1976) ......... 9, 11, 12, 16

Farmer v. Brennan, 511 U.S. 825 (1994) ....................12

Furman v. Georgia, 408 U.S. 238 (1972) ....................16

Garcia v. Stephens, 757 F.3d 220 (5th Cir. 2014) .........7

Glossip v. Gross, 576 U.S. 863 (2015) ..................... 8, 11

Graham v. Florida, 560 U.S. 48 (2010).......................13

Gregg v. Georgia, 428 U.S. 153 (1976) .................. 15, 16

Hall v. Florida, 572 U.S. 701 (2014) ....................... 3, 14

Heath v. Alabama, 474 U.S. 82 (1985) ...................... 4, 5

Hopkins v. Sec’y of State Delbert Hosemann, 76

F.4th 378 (5th Cir. 2023) .........................................14

iii

TABLE OF AUTHORITIES—Continued

Page

Johnson v. City of Grants Pass, 72 F.4th 868 (9th

Cir. 2023) .................................................................14

Kennedy v. Louisiana, 554 U.S. 407 (2008)...............13

Konigsberg v. State Bar of Cal., 366 U.S. 36

(1961) .......................................................................17

Marbury v. Madison, 5 U.S. 137 (1803) ......................15

McCulloch v. Maryland, 17 U.S. 316 (1819) ......... 17, 18

Miller v. Alabama, 567 U.S. 460 (2012) ...... 8, 12, 14, 18

Ochoa v. Davis, 50 F.4th 865 (9th Cir. 2022) ................7

Oregon v. Ice, 555 U.S. 160 (2009) ................................4

Patterson v. New York, 432 U.S. 197 (1977) ..................5

Penry v. Lynaugh, 492 U.S. 302 (1989) ................. 12, 13

Roper v. Simmons, 543 U.S. 551 (2005) ...... 7, 13, 15, 16

Sasser v. Payne, 999 F.3d 609 (8th Cir. 2021) ..............6

Shinn v. Shinn, 142 S. Ct. 1718 (2022) .................... 4, 6

Stanford v. Kentucky, 492 U.S. 361 (1989) .................13

Steamship Co. v. Emigration Comm’rs, 113 U.S.

33 (1885) ..................................................................10

Trop v. Dulles, 239 F.2d 527 (2d Cir. 1956) ..................9

Trop v. Dulles, 356 U.S. 86 (1958)........................7, 9-11

Trozzi v. Lake Cnty., Ohio, 29 F.4th 745 (6th Cir.

2022) ........................................................................12

iv

TABLE OF AUTHORITIES—Continued

Page

United States v. Grant, 9 F.4th 186 (3d Cir.

2021) .............................................................. 9, 11, 17

Vasquez v. Hillery, 474 U.S. 254 (1986) .....................15

CONSTITUTIONAL PROVISIONS

U.S. CONST. Preamble ...................................................5

ALA. CONST. art. I ..........................................................5

Due Process Clause ......................................................5

U.S. CONST. amend. VIII .................................. 1-3, 5-18

U.S. CONST. amend. V ...................................................6

RULES

Sup. Ct. 37.2 ..................................................................1

OTHER AUTHORITIES

1 W. & M., Sess. 2, c. 2 .................................................16

4 William Blackstone, Commentaries (Joseph

Chitty ed. 1826) ................................................... 5, 15

8 ENGLISH HISTORICAL DOCUMENTS (Andrew

Browning ed. 1953) .................................................16

James Bayard, A Brief Exposition of the Constitution of the United States (2d ed. 1840) ...............16

Jeffrey C. Tuomala, The Casebook Companion

pt. 7, ch. 10 (September 12, 2023)....................... 5, 17

v

TABLE OF AUTHORITIES—Continued

Page

THE FEDERALIST NO. 9 ...................................................5

THE FEDERALIST NO. 51 .................................................5

1

INTRODUCTION AND INTERESTS

OF AMICI CURIAE

For 60 years, the Court’s Eighth Amendment jurisprudence has progressively worsened. The Court

used to treat the Amendment as a focused protection

against cruel and unusual punishments. But it has

become a potent tool to judicially impose policy preferences and revisit settled constitutional conclusions.

The States of Idaho, Arkansas, Florida, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North

Dakota, South Carolina, South Dakota, Texas, and

Utah (“Amici States”)1 champion the protection the

Constitution provides against cruel and unusual punishments, and the Court should take the opportunity

to refocus courts on that protection.

Once the Court overlayed the Eighth Amendment

with “the evolving standards of decency” gloss, the

Amendment has taken on a roving commission with a

growing appetite. Courts have used that standard to

strike down State laws against public encampments,

imposing death for brutal rape of young children, and

removing voting rights from felons, to name just a few

examples. About the only thing clear with the Amendment these days is that Amici States’ criminal laws are

at the mercy of a constitutional test with no limiting

principle.

Under the evolving standards approach, the text

of the Eighth Amendment has little meaning. That

1

Pursuant to Rule 37.2, Amici States provided timely notice

of their intent to file this brief to all parties in the case.

2

framework instead forces judges to act as sociologists

and determine what they think runs afoul of the evolving standards decency. But the people have committed

penological policy determinations to their State legislatures. And States retain sovereignty over the creation and enforcement of criminal codes.

The Eleventh Circuit’s decision undermines Amici

States’ sovereignty over criminal law. It erroneously

expands this Court’s Eighth Amendment jurisprudence and, in doing so, improperly directs State intellectual-capacity determinations. The panel decision

also deepens a circuit split, which ensures inconsistency across the States.

Those are reasons enough to grant certiorari.

There is another, though. The Eleventh Circuit’s decision is the fruit of this Court’s errant Eighth Amendment jurisprudence. Until the Court corrects it, States

will continue to be on the receiving end of federal

overreach. And most unfortunately, their citizens and

crime victims are the ones who must live with the consequences of States’ eroded ability to address crime.

Certiorari is warranted.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

The Eleventh Circuit extended this Court’s

Eighth Amendment holdings to new ends. None of

them support the Eleventh Circuit’s conclusion that

the cruel and unusual punishments clause requires

States to give controlling weight to the lowest range of

3

a criminal defendant’s lowest score on an IQ test. This

Court in Atkins v. Virginia, 536 U.S. 304 (2002), instead

left those type of evidentiary determinations to States.

The Eleventh Circuit’s decision also propagates

this Court’s errant “evolving standards of decency”

jurisprudence. That “evolving” approach has spawned

many more Eighth Amendment anomalies. It is time

for the Court to ground its Eighth Amendment jurisprudence in the Constitution’s text, history, and structure.

---------------------------------♦---------------------------------

REASONS FOR GRANTING CERTIORARI

I.

The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions And Deepens

A Circuit Split.

Neither the Eighth Amendment nor this Court’s

precedents straitjacket State determinations of intellectual disability. But the Eleventh Circuit’s decision

does. It went beyond applying the Eighth Amendment’s prohibition against executing intellectually disabled criminals, Atkins v. Virginia, 536 U.S. 304, 321

(2002), or ensuring that States account for an IQ test’s

standard error of measurement, Hall v. Florida, 572

U.S. 701, 724 (2014). It instead short-circuited the intellectual disability inquiry and forced Alabama to give

controlling weight to the bottom end of a single IQ

test’s standard error of measurement. Petitioner explains well why that holding is wrong.

4

The legal error alone warrants this Court’s attention. But the decision also implicates important State

interests that warrant granting certiorari. The States’

sovereign power to administer a criminal code is foremost among them. See Heath v. Alabama, 474 U.S. 82,

93 (1985). “From the beginning of our country, criminal

law enforcement has been primarily a responsibility

of the States.” Shinn v. Shinn, 142 S. Ct. 1718, 1730

(2022). Ratification did not change that. “The power to

convict and punish criminals lies at the heart of the

States’ residuary and inviolable sovereignty.” Id.

For these reasons, the Court in Atkins “le[ft] to the

State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at 317. The Court

noted that “mild” intellectual disability “is typically

used to describe people with an IQ level of 50–55 to

approximately 70,” but it did not command States

when and how it must deem someone intellectually

disabled. Id. at 309 n.3. The Eleventh Circuit’s decision

ignores the space this Court reserved for States. And it

assumes too much say over State criminal law.

The Court has consistently been careful not to intrude on State sovereignty in this area. For example,

the Court declined to extend Apprendi’s holding in part

because of “States’ interest in the development of their

penal systems, and their historic dominion in this

area.” Oregon v. Ice, 555 U.S. 160, 170-71 (2009). Likewise, the Court refused to find that a New York law

placing the burden on criminal defendants to prove extreme emotional disturbance as an affirmative defense

5

violated the Due Process Clause. Patterson v. New York,

432 U.S. 197, 197 (1977). Both holdings follow the

Court’s admonition that federal courts “should not

lightly construe the Constitution so as to intrude upon

the administration of justice by the individual States.”

Id. at 200-01. That cautionary approach applies with

equal force to the Eighth Amendment, and the Eleventh Circuit should have heeded it.

States’ sovereignty over enforcement of their criminal codes is hard to overstate. After all, the principal

reason people organize and form governments is to secure justice, liberty, and tranquility. See, e.g., U.S.

CONST. Preamble; ALA. CONST. art. I; see also THE FEDERALIST NO. 51 (James Madison). Pre-society, no man

has sovereign authority over another since all men

stand equal with each other. He may exercise vengeance when wronged, but he cannot claim to execute

justice. That changes in a state of society, where punishment is “vested in the magistrate alone; who bears

the sword of justice by the consent of the whole community.” 4 William Blackstone, Commentaries 8 (Joseph Chitty ed. 1826); see also Jeffrey C. Tuomala, The

Casebook Companion pt. 7, ch. 10, at 7 (September 12,

2023) (on file with author) (noting that, upon entry into

society, citizens have “delegated to the state” certain

natural rights, and the state “then has the power of enforcement”). And in our federal system, “the power to

create and enforce a criminal code” is an “exclusive and

very important portion[ ] of [States’] sovereign power.”

Heath, 474 U.S. at 93 (quoting THE FEDERALIST NO. 9);

see also Calderon v. Thompson, 523 U.S. 538, 556

6

(1998) (“Our federal system recognizes the independent power of a State to articulate societal norms

through criminal law; but the power of a State to pass

laws means little if the State cannot enforce them.”).

The Eleventh Circuit’s decision interferes with

States’ obligation to provide for the security of their

citizens. See Bartkus v. Illinois, 359 U.S. 121, 137 (1959)

(rejecting interpretation of the Fifth Amendment because it “would be a shocking and untoward deprivation of the historic right and obligation of the States

to maintain peace and order within their confines.”).

Society, and victims of crime particularly, rightly expect that “moral judgment will be carried out.” Shinn,

142 S. Ct. at 1731. “To unsettle these expectations is

to inflict a profound injury to the powerful and legitimate interest in punishing the guilty.” Id. When the

people of a State, through their representative government, have determined that a member of their community deserves punishment, federal courts should tread

lightly. The Eleventh Circuit’s expansive view claims

too much authority over an area that is foundational

to society. Nothing in the Eighth Amendment binds

States to blinkered evidentiary determinations that

frustrate State penological policy—not even in the capital context.

The decision below also creates greater uncertainty for States. States in the Eighth and Ninth Circuits follow the Eleventh Circuit’s approach that a

criminal defendant necessarily meets his burden if the

bottom range of a single score’s standard error of measurement is at or below 70, see, e.g., Sasser v. Payne, 999

7

F.3d 609 (8th Cir. 2021); Ochoa v. Davis, 50 F.4th 865

(9th Cir. 2022); States in the Fifth and Sixth Circuits

reject that approach and consider all IQ scores as evidence of intellectual capacity, see, e.g., Garcia v. Stephens, 757 F.3d 220 (5th Cir. 2014); Black v. Carpenter,

866 F.3d 734 (6th Cir. 2017); and States outside of these

Circuits are left guessing which interpretation their

Circuit will adopt. The Court should resolve this split

and provide States direction going forward.

II.

The Eleventh Circuit’s Decision Is An Outgrowth Of The Evolving Standards Of Decency Jurisprudence, Which Is Not Textual,

Historical, Or Logical.

The Eleventh Circuit’s decision is an expansion of

this Court’s precedents any way you cut it. But it is a

symptom of a deeper issue—and one that should surprise no one. When this Court subjected the Eighth

Amendment’s meaning to “the evolving standards of

decency that mark the progress of a maturing society,”

Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality

opinion), it engrafted increase, instability, and subjectivity to the text. Now, every case presents a fresh opportunity for State criminal law to fall short of the

Eighth Amendment’s “evolving” morality.

So while the Eleventh Circuit may have jumped

the gun today, there is no telling what tomorrow holds.

As this Court has instructed, courts must constantly

revisit whether State penal judgments are cruel and

unusual. See Roper v. Simmons, 543 U.S. 551, 561

8

(2005) (affirming “the necessity” of “the evolving standards of decency” test to determine which punishments

violate the Eighth Amendment). Such an indeterminate standard is no standard at all.

The Court’s Eighth Amendment jurisprudence is

a problematic outlier, and its forward march “has no

discernible end point.” Miller v. Alabama, 567 U.S.

460, 501 (2012) (Roberts, C.J., dissenting). It has caused

much mischief already and will continue to do so until

corrected. Glossip v. Gross, 576 U.S. 863, 899 (2015)

(Scalia, J., concurring). Courts should not be tasked

with judging the changing winds of society’s evolving

morals. Their job is to declare what the law says—

not what they think society would like it to say.

This case presents the Court with the right opportunity to ground the Eighth Amendment’s meaning in

text, structure, and history. Doing so will protect the

sovereign role States have over criminal sanctions.

And it will bring harmony to the Court’s constitutional

interpretive framework. See Bucklew v. Precythe, 139

S. Ct. 1112, 1122 (2019).

A. The evolving standards of decency jurisprudence came out Warren Court

dicta and has been promoted to the

substantive test for Eighth Amendment

meaning.

The story of the Court’s Eighth Amendment jurisprudence begins like other novel constitutional announcements. A plurality of the Warren Court unnecessarily

9

“waxed historical” about the Eighth Amendment, see

United States v. Grant, 9 F.4th 186, 202 (3d Cir. 2021)

(Hardiman, J., concurring), and declared for the first

time that “[t]he Amendment must draw its meaning

from the evolving standards of decency that mark the

progress of a maturing society.” Trop, 356 U.S. at 101

(plurality). That stray line of dicta was later repurposed as the Amendment’s governing standard. See

Estelle v. Gamble, 429 U.S. 97, 102 (1976). A closer look

at Trop confirms the impropriety of propagating further the evolving standards of decency jurisprudence.

In 1958, this Court considered whether American

Private Albert Trop lost his national citizenship because he was convicted by a military court of desertion “in time of war.” Trop, 356 U.S. at 88 n.1. The

Second Circuit rejected Trop’s due process challenge

to his expatriation. Trop v. Dulles, 239 F.2d 527, 529

(2d Cir. 1956). With Judge Learned Hand writing for

the majority, the court explained that “[w]e have not

considered, and do not consider, whether under the

circumstances at bar ‘expatriation’ was, or was not, a

‘cruel and unusual’ punishment under the Eighth

Amendment.” Id. The reason was because Trop “did not

suggest anything of the kind in his complaint, or upon

the motion for summary judgment; Judge Inch did not

mention it in disposing of the motion, nor did the plaintiff do so in argument.” Id. at 529-30.

In a 4-1-4 decision, this Court reversed. Chief Justice Earl Warren explained that under the holding of

Perez v. Brownell, “citizenship is not subject to the general powers of the National Government and therefore

10

cannot be divested in the exercise of those powers.”

Trop, 356 U.S. at 92. On that “ground alone,” the Court

reversed. Id. at 93.

But Chief Justice Warren did not stop there. He

took up an unrelated and unpreserved Eighth Amendment question. And he did so even though “the words

of the Amendment are not precise” and the Court had

“had little occasion to give precise content to the

Eighth Amendment.” Id. at 100-01. What should have

been a clear instance of constitutional avoidance, see

Steamship Co. v. Emigration Comm’rs, 113 U.S. 33, 39

(1885), was instead embraced as an invitation to develop the Eighth Amendment.

In interpreting the Amendment, the plurality

barely addressed the text. It questioned whether there

was any difference between the words “cruel” and “unusual” but quickly noted that “precise distinctions between cruelty and unusualness do not seem to have

been drawn” in prior decisions. Trop, 356 U.S. at 100

n.32. Without further textual hang-up, the plurality

concluded that because the Amendment’s “scope is not

static,” it “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing society.” Id. at 101. On that understanding, the

plurality found “that use of denationalization as a punishment is barred by the Eighth Amendment.” Id. The

Amendment’s prohibition reaches beyond “physical

mistreatment” and “primitive torture,” the plurality

explained—it also reaches forms of punishment that

destroy an accused’s “political existence.” Id.

11

The “evolving standards of decency . . . phrase

went unmentioned in [this] Court for ten years after

Trop, until it surfaced in a footnote in a death-penalty

case,” after which “it was then quoted only in passing

in seven death-penalty cases in the 1970s.” Grant, 9

F.4th at 202-03 (Hardiman, J., concurring). In 1976, the

Court looked to the “idealistic” phrase and held that

“punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a

maturing society’” violate the Eighth Amendment.

Estelle, 429 U.S. at 102. Although the Trop plurality

had merely said that the Eighth Amendment “must

draw its meaning” from the evolving standards of decency, the Court in Estelle turned “Trop’s dicta [in]to a

constitutional test.” Grant, 9 F.4th at 203 (Hardiman,

J., concurring).

In the following years, the test has been “a standard bearer for the view that the Constitution’s meaning changes over time.” Id. It is “bad wine of a recent

vintage,” id. at 201, and it “has caused more mischief

. . . than any other that comes to mind.” Glossip, 576

U.S. at 899 (Scalia, J., concurring).

B. The evolving standards of decency jurisprudence is a lawless standard that has

no regard for any of this Court’s Eighth

Amendment precedents.

Chief Justice Warren may not have intended his

homiletic words to become a barometer for constitutionally permissible punishments. But they have. And

12

they have been used to overturn precedent after precedent and to justify the ballooning reach of the Eighth

Amendment. The test’s track record shows that its ambitions know no bounds. It stands ready for its next call

“to shap[e] the societal consensus of tomorrow.” Miller,

567 U.S. at 509 (Thomas, J., dissenting).

A few cases suffice to show the test’s character.

Start with Estelle. Before that case, the Court understood the Eighth Amendment to prohibit the government from acting cruelly and unusually. But Estelle

used the evolving standards test to extend the Eighth

Amendment to prohibit the government from failing to

act. 429 U.S. at 104. That extension lacked constitutional grounding, and the Court later had to “stabilize

Estelle’s flimsy foundation.” Trozzi v. Lake Cnty., Ohio,

29 F.4th 745, 751 (6th Cir. 2022) (citing Farmer v. Brennan, 511 U.S. 825, 829 (1994)).

The test picked up steam at the turn of the 21st

century. In 2002, the Court considered whether the

Eighth Amendment prohibited executing a man with

mental disabilities and held that it did. See Atkins, 536

U.S. 304. That decision overturned the Court’s holding

from just thirteen years prior, when the Court addressed the very same question and held the opposite.

Penry v. Lynaugh, 492 U.S. 302, 340 (1989). Perhaps

Penry’s short-lived holding should not have come as a

surprise, given that the Court noted in its closing sentences that “a national consensus against execution

of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark

the progress of a maturing society.” Id. In the 13 years

13

between the two decisions, the Court found that the

American consensus shifted and consolidated around

condemnation of executing such persons. Atkins, 536

U.S. at 315-17. The so-called “national consensus” the

Court relied on to do a 180 on Penry was that 18 of the

38 States with capital punishment in some way excused mentally incompetent persons. Id. at 343 (Scalia,

J., dissenting) (“How is it possible that agreement

among 47% of the death penalty jurisdictions amounts

to ‘consensus’?”). As the Court saw it, determining consensus depended more on “the consistency of the direction of change” than on actual numbers. Id. at 315.

Soon after Atkins, the Court again used the evolving standards test to overturn another of its 1989 decisions. See Roper, 543 U.S. 551. In Stanford v. Kentucky,

492 U.S. 361 (1989), the Court held that the Eighth

Amendment did not prohibit capital punishment for

juvenile murderers. Id. at 380. In 2005, the Court held

just the opposite in a 5-4 decision. The “national consensus” on which the Court relied was the same as in

Atkins: 18 of 38 States with the death penalty excluded juveniles from its sanction. Roper, 543 U.S. at

552-53.

The pace quickened following Roper. In 2008, the

Court found that a national consensus formed against

executing child rapists. Kennedy v. Louisiana, 554 U.S.

407, 446 (2008). In 2010, the Court held that lifewithout-parole sentences for non-homicide juvenile

offenders violated the Eighth Amendment. Graham v.

Florida, 560 U.S. 48, 82 (2010). In 2012, the Court

held that mandatory life-without-parole sentences for

14

juveniles—even those convicted of murder—violated

the Eighth Amendment. Miller, 567 U.S. at 479. And in

2014, the Court held that the Eighth Amendment requires States to consider an IQ test’s standard error of

measurement for death-row inmates. Hall, 572 U.S. at

724. Each of these decisions were 5-vote majorities

with sharp dissents.

Unsurprisingly, the evolving standards of decency

jurisprudence has creeped beyond death-penalty and

life-without-parole cases. For example, the Ninth Circuit has found it unconstitutional under the Eighth

Amendment to criminalize “sleeping somewhere in public if one has nowhere else to do so.” Johnson v. City of

Grants Pass, 72 F.4th 868, 896 (9th Cir. 2023). The

Ninth Circuit has also found that the Eighth Amendment guaranteed a prisoner the right to “gender confirmation surgery.” Edmo v. Corizon, Inc., 935 F.3d 757,

797 (9th Cir. 2019). And the Fifth Circuit found “a national consensus against punishing felons by permanently barring them from the ballot box.” Hopkins v.

Sec’y of State Delbert Hosemann, 76 F.4th 378, 407 (5th

Cir. 2023).

Any expectation that the evolving standards of decency jurisprudence is just a modest method to address

modern punishments is now naïve. The standard has

lost any tie to “objective factors.” Coker v. Georgia, 433

U.S. 584, 592 (1977) (plurality opinion). Eighth Amendment jurisprudence instead is laced with uncertainty,

merely reflecting “the subjective views of individual

Justices.” Id. Our constitution made the law king, and

the rule of law means that “bedrock principles”—not

15

“the proclivities of individuals”—govern. Vasquez v.

Hillery, 474 U.S. 254, 265-66 (1986). The evolving standards of decency jurisprudence is contrary to basic legal

norms: it lacks notice and predictability; it invites arbitrariness and cannot be applied consistently; and it

undermines the integrity of the judicial process. It is

time this Court do something about it.

C. The evolving standards of decency jurisprudence cannot be squared with

the text, structure, and history of the

Eighth Amendment.

The Court can, and should, normalize its Eighth

Amendment jurisprudence. Instead of requiring judges

to act as sociologists and tempting them to exercise

their own will, the Court should return to declaring

what the law is. Marbury v. Madison, 5 U.S. 137, 177

(1803). The text and object of the Eighth Amendment

stand against the evolving standards of decency approach.

All agree that the Eighth Amendment is not a

“static” command. See Gregg v. Georgia, 428 U.S. 153,

173 (1976); Roper, 543 U.S. at 589 (O’Connor, J., dissenting); Bucklew, 139 S. Ct. at 1135. It of course prohibits more than the methods of torture rejected in

1791, like “embowelling alive, beheading, and quartering.” 4 William Blackstone, Commentaries 376 (Joseph

Chitty ed. 1826). But pinning an “evolving” standards

approach to the Amendment is not the only way to protect it from becoming “little more than a dead letter

16

today.” Roper, 543 U.S. at 589 (O’Connor, J., dissenting).

First, the Court has already signaled an interpretive course-correction. In Bucklew, the Court explained

that the Eighth Amendment must be interpreted according to its “original and historical understanding.”

Bucklew, 139 S. Ct. at 1122. That is also the “standard”

approach the Court applies when interpreting constitutional text. Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228, 2271 (2022). Under that approach, the

Amendment forbids “tortures and other barbarous

methods of punishment.” Estelle, 429 U.S. at 102

(cleaned up). As one early commentator explained, the

Amendment prohibits “the use of the rack or the stake,

or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.” James Bayard, A Brief Exposition of the

Constitution of the United States 154 (2d ed. 1840).

The text itself came straight from the English Bill

of Rights of 1689, which stated that “excessive bail

ought not to be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.” 1 W. &

M., Sess. 2, c. 2; 8 ENGLISH HISTORICAL DOCUMENTS,

1660-1714, p. 122 (Andrew Browning ed. 1953). The

purpose was to protect “against punishments unauthorized by statute and beyond the jurisdiction of the

sentencing court, as well as those disproportionate to

the offense involved.” Gregg, 428 U.S. at 169. Similar

provisions were in Virginia’s Constitution of 1776, the

constitutions of seven other States, and the Northwest

Ordinance. Furman v. Georgia, 408 U.S. 238, 243-44

17

(1972) (Douglas, J., concurring). The history of those

enactments confirms that “the evil the Eighth Amendment targets is intentional infliction of gratuitous

pain.” Baze v. Rees, 553 U.S. 35, 102 (2008) (Thomas, J.,

concurring).

Second, the original and historical understanding

does not proscribe only those punishments thought

cruel and unusual at ratification. The evolving standards of decency approach attempts to address the fact

that society’s understanding may mature and develop

about what constitutes a cruel and unusual punishment. But it errs by cutting the tie between law and

judgment. In its most modest application, the approach suffers from majoritarianism, which is exactly

what the Bill of Rights protects against. In its recent,

broader applications, it substitutes “judicial preferences” about all aspects of penological policy for the

will of the People. Grant, 9 F.4th at 205. That is not

how the rule of law works.

Law “is a rule: not a transient sudden order from

a superior, to, or concerning, a particular person; but

something permanent, uniform, and universal.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 58 n.5 (1961)

(quoting Daniel Webster). The “permanent, uniform,

and universal” nature of law reflects the “being” and

“becoming” attributes built into the Constitution. See

Tuomala, infra, pt. 1, ch. 5, at 10; see also McCulloch v.

Maryland, 17 U.S. 316, 407 (1819) (explaining that the

Constitution lacks “the prolixity of a legal code” and its

“nature” instead “requires, that only its great outlines

should be marked, its important objects designated,

18

and the minor ingredients which compose those objects,

be deduced from the nature of the objects themselves”).

In this way, the law allows for new applications, but it

does so by remaining faithful to constitutional text and

embedded principles.

With the Eighth Amendment, the text and object

of the Amendment contemplate punishments existing

and not yet imagined at the time of the founding. Some

amount of deduction from “its great outlines” may be

required. See McCulloch, 17 U.S. at 407. And society’s

present understanding of “decency” may be evidence of

what is cruel and unusual—it also may not be. See

Miller, 567 U.S. at 510 (2012) (Alito, J., dissenting)

(“Is it true that our society is inexorably evolving in

the direction of greater and greater decency? Who says

so, and how did this particular philosophy of history

find its way into our fundamental law?”). Redirecting

judges from a targeted inquiry guided by fixed principles and commissioning them to make vague determinations about society’s evolving sense of decency is

contrary to the very premise of civil society: punishment for crimes has been removed from the hands of

the few and committed to society—judges are no exception. Ultimately the text, structure, and history

must control the analysis. Faithfully applied, that approach protects against both ancient and modern cruel

and unusual punishments. See Baze, 553 U.S. at 102

(Thomas, J., concurring).

It is long overdue for the Court to remove the

evolving standards of decency test from its Eighth

19

Amendment jurisprudence. The Court should grant

certiorari here and do so.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

RAÚL R. LABRADOR

Attorney General

IDAHO OFFICE OF THE

ATTORNEY GENERAL

700 W. Jefferson St.

Suite 210

Boise, ID 83720

(208) 334-2400

josh.turner@ag.idaho.gov

THEODORE J. WOLD

Solicitor General

JOSHUA N. TURNER

Chief Deputy

Solicitor General

Counsel of Record

Counsel for Amicus Curiae State of Idaho

September 20, 2023

20

ADDITIONAL COUNSEL

TIM GRIFFIN

Attorney General

State of Arkansas

ASHLEY MOODY

Attorney General

State of Florida

KRIS W. KOBACH

Attorney General

State of Kansas

JEFF LANDRY

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

ALAN WILSON

Attorney General

State of South Carolina

21

MARTY JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas

SEAN REYES

Attorney General

State of Utah