Reply Brief — Brian J. Dorsey, Petitioner v. David Vandergriff, Warden

No. 23-7153 and 23A890

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IN THE

SUPREME COURT OF THE UNITED STATES

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BRIAN DORSEY,

Petitioner,

v.

DAVID VANDERGRIFF,

Respondent.

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On Petition for a Writ of Certiorari to the

Supreme Court of Missouri

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PETITIONER’S REPLY BRIEF

_______________________________

KIRK J. HENDERSON

Counsel of Record

ARIN MELISSA BRENNER

Assistant Federal Public Defenders

Federal Public Defender for the

Western District of Pennsylvania

1001 Liberty Avenue, Suite 1500

Pittsburgh, PA 15222

412-644-6565

kirk_henderson@fd.org

Supreme Court Bar No. 229934

Counsel for Petitioner Brian J. Dorsey

CAPITAL CASE

Execution Scheduled for April 9, 2024 at 6:00 pm CDT

Brian Dorsey is scheduled to be executed in just over 24 hours, on April 9, 2024.

Yet executing Mr. Dorsey no longer meets any of this Court’s stated penological

purposes for why capital punishment exists. Executing a man without any legitimate

reason or justification is the epitome of the “cruel and unusual punishment” the

Eighth Amendment to the Constitution is designed to prevent.

I.

Respondents and the Missouri Supreme Court misconstrue the

constitutional question.

This Court has repeatedly held that capital punishment is unconstitutional if

it fails to meet the legitimate penological interests. Gregg v. Georgia, 428 U.S. 153,

183 (1976) (“[T]he sanction imposed cannot be so totally without penological

justification that it results in the gratuitous infliction of suffering”). Nor is execution

constitutional if the “social goal of retribution” is not furthered because the person

being executed “for all moral purposes is not the same person who committed the

crime.” Ford v. Wainwright, 752 F.2d 526, 531 & n.3 (11th Cir. 1985) (Clark, J.,

dissenting), rev’d by Ford v. Wainwright, 477 U.S. 399 (1986).

Both the Missouri Supreme Court and Respondents mistake the other side of

the Eighth Amendment analysis here. 1 The question is not whether capital

punishment is a legitimate exercise of a State’s ultimate power against Mr. Dorsey

in lieu of no other punishment. Instead, the proper inquiry is whether execution

serves any penological purpose as opposed to Mr. Dorsey remaining in prison for the

1 The State’s attempt to argue originalism is both ahistorical and insupportable. See

e.g., Erwin Chemerinskly, Even the Founders Didn’t Believe in Originalism, The

Atlantic (Sept. 6, 2022), https://shorturl.at/lqPV9.

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remainder of his life with no opportunity for parole. And when there are compelling

justifications and legitimate penological goals supporting life in prison, Missouri no

longer has a constitutionally-sound reason to execute Mr. Dorsey. If “death is

different,” and requires heightened scrutiny to ensure “that death is the appropriate

punishment in a specific case,’” that analysis should not end at the point of conviction,

but must be reassessed at the time of execution as well, when a state can better

evaluate whether death or life in prison without parole is the most just outcome.

Gregg, 428 U.S. at 188; Barefoot v. Estelle, 463 U.S. 880, 913–914 (1983) (dissenting

opinion) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)).

The Missouri Supreme Court stated below that “Dorsey does not explain how

his execution would not further the penological goals of deterrence or retribution.”

Pet. App. A at 19. Studies have undermined the presumption that capital punishment

provides any deterrent effect. See Baze v. Rees, 128 S. Ct. 1520, 1547 (2008) (Stevens,

J., concurring in judgment) (pointing out that after more than thirty years of

empirical research, social scientists have yet to produce any “reliable statistical

evidence that capital punishment in fact deters potential offenders.”); see also, e.g.,

Jeffrey Fagan, Death and Deterrence Redux: Science Law, and Causal Reasoning on

Capital Punishment, 4 Ohio St. J. Crim. L., 255, 261 (2006); Michael L. Radelet &

Traci L. Lacock, Do Executions Lower Homicide Rates?: The Views of Leading

Criminologists, 99 J. Crim. L. & Criminology 489, 490-500 (2009).

Moreover, deterrence should not be considered in a vacuum. As studies have

repeatedly shown, other punishments such as life without parole may well provide

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equal deterrence. See Deterrence and the Death Penalty: A Critical Review of New

Evidence: Hearings on the Future of Capital Punishment in the State of New York,

Before the New York State Assemblies, 2005 Leg., 228th Sess. 1-12, 9 (N.Y. 2005)

(statement of Jeffrey Fagan, Professor of Law and Pub. Health, Columbia Univ.),

available at www.deathpenaltyinfo.org/FaganTestimony.pdf. Additionally, part of

the reason that over 70 correctional officers have signed a letter asking Governor

Parson for clemency is because executing Mr. Dorsey only serves to deter those

sentenced to death from trying to rehabilitate themselves, behave well, or adjust

successfully to the prison environment. If an inmate has no hope of relief, why would

any other Missouri inmate endeavor to remain conduct-violation free, or obtain and

maintain a job within the institution?

Further, retribution cannot be defined as the personal desires of victims in any

case. Living in a society that values certain fundamental rights requires a different

calculus for retribution, in order to “protect the dignity of society itself from the

barbarity of exacting mindless vengeance,” Ford, 477 U.S. at 410. Where the

Constitution is offended and society accordingly would be harmed by an execution,

the interest some victims have in the execution taking place unfairly pits victims’

emotions against fundamental constitutional values. Respondent surely knows this

and his decision to inject irrelevant and inflammatory information into his argument

is arguably unethical.

It is also inapposite. Family members might have similarly fraught feelings in a

case where a person cannot be executed due to incompetency (see, e.g., Ford; Panetti

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v. Quarterman, 551 U.S. 930 (2007)), or in a case where an intellectually disabled

person is exempt from execution (see, e.g., Atkins v. Virginia, 536 U.S. 304 (2002)).

The State of Missouri is held to a different, and constitutional, standard, and indeed

must represent all of its citizens, including those that the State itself employs to

maintain safety and security in its prisons, and the other family members, former

judges, and former Missouri Supreme Court judge that are advocating for Mr.

Dorsey’s impending execution to be halted. See Edward Helmore, More Than 150

People Call On Missouri Governor to Forgive Brian Dorsey’s Death Penalty, The

Guardian (Apr. 3 2024), https://shorturl.at/jAFY0

Finally, the setting of an execution date is exactly when rehabilitation should be

measured and the question of whether the execution serves any penological purpose

should be evaluated. Earlier analyses would be arbitrary and likely unripe. Stewart

v. Martinez-Villareal, 523 U.S. 637, 643 (1998) (during initial habeas proceedings, the

district court properly dismissed the Ford competency claim as unripe because an

execution date had not been set; the claim became “unquestionably ripe” when the

execution date was set).

II.

Mr. Dorsey’s petition presents an open constitutional question for this

Court.

The Supreme Court of Missouri erred below by attempting to reframe Mr.

Dorsey’s Eighth Amendment claim as an argument for clemency. Pet. App. A at 2021. It is not. Executive clemency is not a sufficient vehicle in which to resolve any

outstanding constitutional question. Here, that question—which this Court can and

should resolve—is when “[a] penalty with such negligible returns to the State would

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be patently excessive and cruel and unusual punishment violative of the Eighth

Amendment.” Furman v. Georgia, 408 U.S. 238, 312 (1972) (opinion concurring in

judgment).

This Court has recognized that an execution can be barred by the Constitution

in extraordinary circumstances when it “ceases realistically to further the []

purposes” of capital punishment. Furman, 408 U.S. at 312 . When a death-sentenced

person has spent years on death row with the kind of record achieved by Mr. Dorsey,

the penological goal of rehabilitation has been satisfied and the constitutionallyrequired goals of retribution and deterrence are not met by an execution. This Court

should decide whether the Eighth Amendment’s power to “protect the dignity of

society itself from the barbarity of exacting mindless vengeance,” Ford, 477 U.S. at

410, extends to defend from execution those who have satisfied the penological goal

of rehabilitation. As this Court has made clear, “[a] penalty with such negligible

returns to the State would be patently excessive and cruel and unusual punishment

violative of the Eighth Amendment.” Furman, 408 U.S. at 312.

CONCLUSION

The petition for a writ of certiorari and motion for stay of execution should be

granted.

Respectfully submitted,

/s/ Kirk J Henderson

Counsel of record

Arin Melissa Brenner

Assistant Federal Public Defenders

kirk_henderson@fd.org

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Supreme Court Bar No. 229934

Federal Public Defender for the

Western District of Pennsylvania

1001 Liberty Ave Ste 1500

Pittsburgh PA 15222

412-644-6565

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