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

No. 24-872

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, ARKANSAS, FLORIDA,

INDIANA, KANSAS, LOUISIANA,

MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NORTH DAKOTA, OHIO,

OKLAHOMA, SOUTH CAROLINA, SOUTH

DAKOTA, TENNESSEE, TEXAS, UTAH, AND

THE ARIZONA LEGISLATURE 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

alan.hurst@ag.idaho.gov

ALAN M. HURST

Solicitor General

Counsel of Record

MICHAEL A. ZARIAN

Deputy Solicitor General

GADER WREN

Deputy Attorney General

Counsel for Amicus Curiae State of Idaho

[Additional Counsel Listed with Signature Block]

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND

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

REASONS FOR GRANTING CERTIORIARI ........... 4

I.

The Court Should Pare Back Its “Evolving

Standards Of Decency” Jurisprudence. ...............4

A. The “evolving standards of decency”

framework began as scarcely reasoned

dicta.................................................................. 4

B. The “evolving standards of decency”

framework erodes the rule of law. .................. 7

C. The Court should take steps to return

Eighth Amendment jurisprudence to

analyzing text, structure, and history .......... 11

II. The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions. ..............................15

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

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Atkins v. Virginia,

536 U.S. 304 (2002) ....................... 2, 3, 8, 9, 14, 18

Bartkus v. Illinois,

359 U.S. 121 (1959) ......................................... 1, 18

Baze v. Rees,

553 U.S. 35 (2008) ............................................... 12

Bucklew v. Precythe,

587 U.S. 119 (2019) ....................................... 12, 13

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................. 15

City of Grants Pass, Oregon v. Johnson,

603 U.S. 520 (2024) ............................................. 18

Clark v. Arizona,

548 U.S. 735 (2006) ............................................. 17

Coker v. Georgia,

433 U.S. 584 (1977) ............................................. 11

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 13

Edmo v. Corizon, Inc.,

935 F.3d 757 (9th Cir. 2019)............................... 10

Estelle v. Gamble,

429 U.S. 97 (1976) ..................................... 1, 2, 7, 8

Farmer v. Brennan,

511 U.S. 825 (1994) ............................................... 8

Ford v. Wainwright,

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

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Furman v. Georgia,

408 U.S. 238 (1972) ............................................. 12

Glossip v. Gross,

576 U.S. 863 (2015) ............................................... 7

Graham v. Florida,

560 U.S. 48 (2010) ............................................... 10

Gregg v. Georgia,

428 U.S. 153 (1976) ............................................. 12

Hall v. Florida,

572 U.S. 701 (2014) ................................. 10, 14, 18

Hopkins v. Sec’y of State Delbert Hosemann,

76 F.4th 378 (5th Cir. 2023) ............................... 10

Heath v. Alabama,

474 U.S. 82 (1985) ............................................... 15

Kahler v. Kansas,

589 U.S. 271 (2020) ....................................... 15, 17

Kansas v. Garcia,

589 U.S. 191 (2020) ............................................. 15

Kennedy v. Louisiana,

554 U.S. 407 (2008) ............................................. 10

Leland v. Oregon,

343 U.S. 790 (1952) ............................................. 17

Marbury v. Madison,

5 U.S. 137 (1803) ................................................. 11

Miller v. Alabama,

567 U.S. 460 (2012) ................................... 3, 10, 11

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Oregon v. Ice,

555 U.S. 160 (2009) ............................................. 16

Patterson v. New York,

432 U.S. 197 (1977) ............................................. 16

Penry v. Lynaugh,

492 U.S. 302 (1989) ............................................... 9

Powell v. Texas,

392 U.S. 514 (1968) ....................................... 16, 17

Robinson v. California,

370 U.S. 660 (1962) ............................................... 8

Roper v. Simmons,

543 U.S. 551 (2005) ......................................... 9, 12

Shinn v. Ramirez,

596 U.S. 366 (2022) ................................... 3, 15, 16

Stanford v. Kentucky,

492 U.S. 361 (1989) ............................................... 9

Steamship Co. v. Emigration Comm’rs,

113 U.S. 33 (1885) ................................................. 5

Trop v. Dulles,

356 U.S. 86 (1958) ....................................... 4–7, 10

Trop v. Dulles,

239 F.2d 527 (2d Cir. 1956) .................................. 5

Trozzi v. Lake Cnty., Ohio,

29 F.4th 745 (6th Cir. 2022) ................................. 8

United States v. Grant,

9 F.4th 186 (3d Cir. 2021)..................................... 7

v

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Rahimi,

602 U.S. 680 (2024) ..................................... 2, 6, 12

Vasquez v. Hillery,

474 U.S. 254 (1986) ......................................... 8, 15

Other Authorities

1 W. & M., Sess. 2, c. 2 ............................................. 11

4 William Blackstone, Commentaries 376

(Joseph Chitty ed. 1826) ..................................... 12

8 ENGLISH HISTORICAL DOCUMENTS, 1660–1714,

(Andrew Browning ed. 1953) .............................. 11

THE FEDERALIST NO. 9, (Alexander Hamilton)

(Jacob E. Cooke ed., 1961) .................................. 15

1

INTERESTS OF AMICI

Like other States, the States of Idaho, Arkansas,

Indiana, Florida, Kansas, Louisiana, Mississippi,

Missouri, Montana, Nebraska, North Dakota, Ohio,

Oklahoma,

South

Carolina,

South

Dakota,

Tennessee, Texas, and Utah, as well as the Arizona

Legislature (“Amici States”),1 have a “historic right

and obligation . . . to maintain peace and order within

their confines.” Bartkus v. Illinois, 359 U.S. 121, 137

(1959). In discharging this obligation, Amici States

have authorized capital punishment, and they have

the solemn responsibility to carry out death sentences

imposed according to their laws after a trial by jury.

The Eleventh Circuit’s decision—like similar

decisions in other circuits, see Pet. 16–19—frustrates

Amici States’ ability to fulfill their duty.

Unfortunately, obstructions like this are not new.

Amici States have often encountered previously

unknown Eighth Amendment obstacles ever since

this Court bound the Amendment to “the evolving

standards of decency that mark the progress of a

maturing society.” Estelle v. Gamble, 429 U.S. 97, 102

(1976). That standard has become a potent tool for

judges to rewrite democratically enacted state laws.

Amici States wish to restore their authority to

choose and apply their own penological policies and

rules. Amici States celebrate the Constitution’s

protections against cruel and unusual punishments,

but the text, history, and tradition of the Eighth

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

Amendment do not license the sorts of intrusion into

State policy that have occurred under the “evolving

standards” framework. The Eleventh Circuit’s

extension of Atkins v. Virginia—which itself was the

product of the “evolving standards” framework—must

be undone if the Court is to move towards restoring

the proper balance of federalism prescribed by the

Constitution. 536 U.S. 304, 312 (2002).

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Eleventh Circuit’s decision is not only a

“departure from Atkins,” as Petitioner has capably

explained, Pet. 23; it’s also a symptom of a deeper

problem in this Court’s Eighth Amendment

jurisprudence. Nearly 50 years ago, the Court decided

to tie the Amendment’s scope to “the evolving

standards of decency that mark the progress of a

maturing society,” Estelle v. Gamble, 429 U.S. 97, 102

(1976), an ahistorical—indeed, affirmatively antihistorical—standard that asks judges to consult their

own sense of morality or to divine the current

prevailing morality of the People. In so doing, the

Court unmoored the Eighth Amendment from the

considerations that ordinarily inform constitutional

decisionmaking—namely,

“text,

history,

and

tradition.” United States v. Rahimi, 602 U.S. 680, 714

(2024) (Kavanaugh, J., concurring).

Without these ordinary indicia of constitutional

meaning to anchor the Eighth Amendment’s

interpretation, courts are left with few objective

grounds for their decisions. They can exhaust the

reasoning of precedent (like Atkins), but when that

reasoning runs out, they will eventually rely on the

3

same sorts of considerations as other “evolving

standards of decency” cases—like the views of other

jurisdictions, the views of medical associations, and

the judges’ own sense of morality.

That’s what happened here. Although the

Eleventh Circuit provided little explanation, it

appears to have believed it would be unethical to

execute someone given any chance that the person is

intellectually disabled, even though Alabama has

made its own moral judgment that the person must

prove his intellectual disability to avoid capital

punishment. Considerations like the text, history,

and tradition of the Eighth Amendment certainly

played no role in the Eleventh Circuit’s decision—

given Atkins’ origin, there’s no way they could have.

While some have feared that the “evolving

standards of decency” framework “has no discernible

end point,” Miller v. Alabama, 567 U.S. 460, 501 (2012)

(Roberts, C.J., dissenting), the Court can begin slowing

its momentum now by granting the petition, refusing

to extend Atkins, and reversing the Eleventh Circuit.

Reversing would also fulfill the promise of Atkins

to “leave to the State[s] the task of developing

appropriate ways to enforce [Atkins’] constitutional

restriction upon [their] execution of sentences.” 536

U.S. at 317. The Court left these matters to the States

because “[t]he power to convict and punish criminals

lies at the heart of the States’ residuary and inviolable

sovereignty.” Shinn v. Ramirez, 596 U.S. 366, 376

(2022) (cleaned up). As the Eleventh Circuit’s decision

has shown, however, federal courts all too often ignore

that sovereignty and make decisions that the

Constitution reserves for States.

4

REASONS FOR GRANTING CERTIORIARI

I. The Court Should Pare Back Its “Evolving

Standards Of Decency” Jurisprudence.

The Eleventh Circuit’s decision has its roots in a

single line of dicta from the 1950s—a line the Court

later made into the Eighth Amendment’s guiding

star. But the Court should never have told judges to

chase after the country’s “evolving standards of

decency”—the concept was invented out of whole

cloth, has no support in the text or history of the

Eighth Amendment, and subverts the rule of law. It

is time for the Court to move away from that

framework and begin harmonizing its Eighth

Amendment jurisprudence with that of other

amendments.

A.

The “evolving standards of decency”

framework began as scarcely reasoned

dicta.

The story of the Court’s Eighth Amendment

jurisprudence begins like many other novel

constitutional announcements. A plurality of the

Warren Court unnecessarily “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 v. Dulles, 356 U.S. 86, 101

(1958) (plurality). That stray line of dicta from Trop

v. Dulles was later repurposed to be the Amendment’s

overarching framework.

5

In 1958, this Court considered whether American

private Albert Trop had lost his national citizenship

as a consequence of being convicted of desertion in

time of war by a court martial. Trop, 356 U.S. at 88 &

n.1. The Second Circuit, with Judge Learned Hand

writing for the majority, interpreted the relevant

statute and concluded that Trop had lost his

citizenship, rejecting the private’s Due Process

challenge to the statute in the process. Trop v. Dulles,

239 F.2d 527, 529 (2d Cir. 1956).

In a 4-1-4 decision, this Court reversed. Chief

Justice Earl Warren’s plurality opinion and Justice

Brennan’s concurring opinion both concluded that

“citizenship . . . cannot be divested in the exercise of”

“the general powers of the National Government.”

Trop, 356 U.S. at 92; id. at 105 (Brennan, J.,

concurring) (“expatriat[ing] the wartime deserter . . .

lies beyond Congress’ power”). On that “ground

alone,” the Court acknowledged it should reverse. Id.

at 93.

But Chief Justice Warren did not stop there.

Instead, noting that the Court had “had little occasion

to give precise content to the Eighth Amendment,” id.

at 100–01, he decided to apply the Amendment to the

case even though Trop had not pleaded or argued the

issue before the district court and neither the district

nor the circuit had addressed it. 239 F.2d at 529–30.

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 begin a new and

completely unnecessary line of constitutional

precedent.

6

In interpreting the Eighth Amendment, Chief

Justice Warren’s plurality opinion barely addressed

the text. Instead, it quickly declared that the words of

the Amendment were “not precise” and that its “scope

is not static,” so courts “must draw its meaning from

the evolving standards of decency that mark the

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

100–01. On that understanding, the plurality

invalidated

the

statute’s

punishment

of

denaturalization for war-time deserters because

denaturalization is “a form of punishment more

primitive than torture, for it destroys for the

individual the political existence that was centuries

in the development.” Id. at 101.

The plurality ignored the Amendment’s history

too, looking instead to “the international community

of democracies.” Id. at 102. Historically, desertion had

been a capital offense in America “from the first year

of Independence.” Id. at 125 (Frankfurter, J.,

dissenting) (“Is constitutional dialectic so empty of

reason that it can be seriously urged that loss of

citizenship is a fate worse than death?”). But rather

than base its reasoning in “pre-ratification American

laws and practices [that] formed part of the

foundation on which the Framers constructed the

Constitution and Bill of Rights,” Rahimi, 602 U.S. at

720 (Kavanaugh, J., concurring), the Trop plurality

preferred to give weight to the current views of

“civilized nations of the world,” which—according to a

“United Nations’ survey”—largely did not “impose

denaturalization as a penalty for desertion.” 356 U.S.

at 102–03.

7

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). But in

1976, the Court fully entrenched the phrase as

constitutional doctrine by holding that “punishments

which are incompatible with ‘the evolving standards

of decency that mark the progress of a maturing

society’ ” violate the Eighth Amendment. Estelle v.

Gamble, 429 U.S. 97, 102 (1976) (cleaned up).

Although the Trop plurality had merely said that the

Eighth Amendment must “draw its meaning” from

the evolving standards of decency, Estelle turned

“Trop’s dicta [in]to a constitutional test.” Grant, 9

F.4th at 203 (Hardiman, J., concurring).

In the following years, that test has been “a

standard bearer for the view that the Constitution’s

meaning changes over time.” Id. And in one Justice’s

assessment, the “evolving standards of decency”

framework “has caused more mischief . . . than any

other that comes to mind.” Glossip v. Gross, 576 U.S.

863, 899 (2015) (Scalia, J., concurring).

B.

The “evolving standards of decency”

framework erodes the rule of law.

Chief Justice Warren may not have intended his

homiletic words to become a barometer for all

constitutionally permissible punishments, but they

have. And they have been used to overturn precedent

after precedent and to justify the ever-encroaching

reach of the Eighth Amendment. Our Constitution

made the law king, and the rule of law means that

8

“bedrock principles [ ] founded in the law”—not “the

proclivities of individuals”—govern. Vasquez v.

Hillery, 474 U.S. 254, 265–66 (1986). But the

“evolving standards of decency” jurisprudence is

contrary to basic rule-of-law norms: it invites judges

to follow their own sensibilities rather than objective

standards, it cannot be applied consistently, and it

lacks notice and predictability.

A few cases suffice to show the framework’s

volatile character. Start with Estelle. Before that case,

the Court understood that the Eighth Amendment

prohibited the affirmative “infliction of cruel and

unusual punishment.” Robinson v. California, 370

U.S. 660, 666–67 (1962) (emphasis added). But Estelle

used the “evolving standards” framework 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

attempted to “stabilize Estelle’s flimsy foundation” by

converting it into a two-part test. Trozzi v. Lake Cnty.,

Ohio, 29 F.4th 745, 751–52 (6th Cir. 2022) (citing

Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

The framework picked up steam at the turn of the

21st century. As relevant here, the Court held in

2002—without historical support, Atkins, 536 U.S. at

337 (Scalia, J., dissenting)—that the Eighth

Amendment prohibits the execution of mentally

disabled persons. Id. at 321. That decision overturned

the Court’s holding in Penry v. Lynaugh from just

thirteen years prior, when the Court addressed the

very same question and held the opposite. 492 U.S.

302, 340 (1989).

9

Perhaps Penry’s short-lived holding should not

have come as a surprise, given that its closing

sentences noted 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.

Still, the new supposed “national consensus” Atkins

relied on was that 18 of the 38 States with capital

punishment excused mentally incompetent persons in

some way. Atkins, 536 U.S. 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 there being an actual

majority view. Id. at 315.

Soon after Atkins, the Court again used the

“evolving standards” framework to overturn another

of its 1989 decisions. In Stanford v. Kentucky, the

Court held that the Eighth Amendment did not

prohibit capital punishment for juvenile murderers.

492 U.S. 361, 380 (1989). In 2005, however, the Court

held just the opposite. Roper v. Simmons, 543 U.S.

551, 578 (2005). 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. Id. at 564. The Court explained that

“objective indicia of consensus” are just a starting

point—the Court must also “exercise [its] own

independent judgment” in assessing whether the

punishment sufficiently comports with standards of

decency. Id. at 564.

10

The pace quickened following Roper. In 2008, the

Court held that a national consensus had formed

against executing child rapists. Kennedy v. Louisiana,

554 U.S. 407, 434 (2008). In 2010, the Court held that

life-without-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 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 when applying

Atkins to death-row inmates. Hall v. Florida, 572 U.S.

701, 724 (2014). Each of these decisions were 5-vote

majorities with sharp dissents.

Unsurprisingly, the “evolving standards of

decency” jurisprudence has expanded well beyond

death-penalty and life-without-parole cases. Of

course, Trop itself involved denaturalization. 356 U.S.

at 102. But the Ninth Circuit has even cited “evolving

standards of decency” in concluding that the Eighth

Amendment guaranteed a prisoner the right to

“gender confirmation surgery.” Edmo v. Corizon, Inc.,

935 F.3d 757, 797 & n.21 (9th Cir. 2019). And the

Fifth Circuit applied the same framework to prohibit

“punishing felons by permanently barring them from

the ballot box” before it reversed the decision en banc.

Hopkins v. Sec’y of State Delbert Hosemann, 76 F.4th

378, 407 (5th Cir. 2023), rev’d, 108 F.4th 371 (5th Cir.

2024), cert. denied, No. 24-560, (U.S. Jan. 27, 2025).

Any expectation that the “evolving standards of

decency” jurisprudence is just a modest method to

11

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

hopelessly uncertain, merely reflecting “the

subjective views of individual Justices” who seek to

“shap[e] the societal consensus of tomorrow” instead

of “divining the societal consensus of today.” Id. (first

quote); Miller, 567 U.S. at 509 (Thomas, J.,

dissenting) (second and third quotes).

C.

The Court should take steps to return

Eighth Amendment jurisprudence to

analyzing text, structure, and history

The Court should recenter its Eighth Amendment

jurisprudence on text, history, and tradition, instead

of continuing to require judges to act as sociologists

and tempting them to exercise their own will. “It is

emphatically the province and duty of the judicial

department to say what the law is,” not what it should

be. Marbury v. Madison, 5 U.S. 137, 177 (1803)

(emphasis added).

Text, history, and tradition paint a reasonably

clear picture of what the Eighth Amendment

prohibits. The text of the Eighth Amendment 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). Similar provisions were

in Virginia’s Constitution of 1776, the constitutions of

seven other States, and the Northwest Ordinance.

12

Furman v. Georgia, 408 U.S. 238, 243–44 (1972)

(Douglas, J., concurring).

The history of those enactments confirms that “the

evil the Eighth Amendment targets is intentional

infliction of gratuitous pain” through “torturous

punishments.” Baze v. Rees, 553 U.S. 35, 97, 102 (2008)

(Thomas, J., concurring). In particular, the Founders

intended to prohibit “modes of punishment akin to

those” “barbarous” punishments that had “dwindled

away” by the time of Ratification. Id. at 97, 99 (cleaned

up). Such punishments included “embowelling alive,

beheading, and quartering.” 4 William Blackstone,

Commentaries 376 (Joseph Chitty ed. 1826).

That’s not to say that the Eighth Amendment has

nothing to say about punishments that were not

contemplated in 1789—all agree that it does. See

Gregg v. Georgia, 428 U.S. 153, 173 (1976); Roper, 543

U.S. at 589 (O’Connor, J., dissenting); Bucklew v.

Precythe, 587 U.S. 119, 152 (2019) (Thomas, J.,

concurring). But embracing an “evolving standards”

approach is not the only way to protect the

Amendment from becoming “little more than a dead

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

dissenting). The Court has been able to address

modern situations when applying other amendments

without casting off text, history, and tradition. See

Rahimi, 602 U.S. at 692 (when applying the Second

Amendment, “[a] court must ascertain whether the

new law is relevantly similar to laws that our

tradition is understood to permit, applying faithfully

the balance struck by the founding generation to

modern circumstances”) (cleaned up).

*

*

*

13

Fortunately, the Court has already signaled an

interpretive course correction in Eighth Amendment

jurisprudence. In 2019, the Court held that the

Eighth Amendment must be interpreted according to

its “original and historical understanding.” Bucklew,

587 U.S. at 129. And just last year, the Court rejected

an expansion of the Eighth Amendment that sat

“uneasily with the Amendment’s terms” and “original

meaning.” City of Grants Pass, Oregon v. Johnson,

603 U.S. 520, 549 (2024). These “standard grounds for

constitutional decisionmaking” have been repeatedly

reaffirmed as the proper foundation of all

constitutional interpretation. Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 279 (2022).

The Court can stay the new course by continuing

to undercut the “evolving standards of decency”

framework. In so doing, it will dramatically reduce

arbitrary judicial decisionmaking. As experience has

shown, when there is no “text or history” to “confine

or guide” judicial review, courts are “left to write into

the Constitution [their] own formulas, many of which

would likely prove unworkable in practice” and

“would interfere with essential considerations of

federalism that reserve to the States primary

responsibility for drafting their own criminal laws.”

Grants Pass, 603 U.S. at 551 (cleaned up). This has

been the case with every other constitutional

standard invented out of whole cloth. See Dobbs, 597

U.S. at 281, 286 (undue burden standard for right to

abortion could not be “applied in a consistent and

predictable manner” and charged judges with the

“unwieldy and inappropriate task” of making policy).

14

That arbitrary decisionmaking was on full

display in the Eleventh Circuit’s decision below.

Given the lack of instruction from Atkins and its

progeny on whether States may require capital

defendants to carry the burden of proof to show

intellectual disability, the court decided with little

explanation that the State could not carry out an

execution if there was any chance the person was

intellectually disabled. See App.5a (“the record

evidence plausibly supports the district court’s

finding that Smith’s true IQ score could be less than

or equal to 70”) (emphasis added). The court gave no

regard to text, history, tradition, or the moral

judgment of the people of Alabama—apparently

opting instead to consult its own sense of fairness.

This is the inevitable result when the Court adopts a

framework

like

“evolving

standards”

that

affirmatively eschews text, history, and tradition in

favor of judge-discerned morality.

This petition presents the next step in scaling

back “evolving standards,” even if it does not ask for

the framework to be overruled. Atkins itself is the

product of “evolving standards,” 536 U.S. at 312, and

Hall extended Atkins by dictating additional rules

that States must apply when assessing intellectual

disability. 572 U.S. at 718–21. But given the specious

rationale on which the entire line of precedents rests,

see Atkins, 536 U.S. at 337 (Scalia, J., dissenting)

(finding “no support in the text or history of the

Eighth Amendment”), it is time at least to stop

propagating the line further. The Court should grant

the petition and reverse the Eleventh Circuit to

prevent Atkins from being extended once again.

15

II. The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions.

Paring back the “evolving standards of decency

framework” will reduce the role of federal courts in

determining the appropriate punishment for criminal

offenders. At the same time, it will restore States to

their “paramount role . . . in setting standards of

criminal responsibility” and deciding “when a person

should be held criminally accountable for his

antisocial deeds.” Kahler v. Kansas, 589 U.S. 271, 280

(2020) (cleaned up).

“From the beginning of our country, criminal law

enforcement has been primarily a responsibility of the

States.” Kansas v. Garcia, 589 U.S. 191, 212 (2020).

Ratification did not change that. “The power to

convict and punish criminals lies at the heart of the

States’ residuary and inviolable sovereignty.” Shinn,

596 U.S. at 376 (cleaned up); Heath v. Alabama, 474

U.S. 82, 93 (1985) (“The Constitution leaves in the

possession of each State ‘certain exclusive and very

important portions of sovereign power,’ ” and

“[f]oremost among” them is “the power to create and

enforce a criminal code”) (quoting THE FEDERALIST

NO. 9, at 55 (Alexander Hamilton) (Jacob E. Cooke

ed., 1961)).

However, “the power of a State to pass laws

means little if the State cannot enforce them.”

Calderon v. Thompson, 523 U.S. 538, 556 (1998)

(cleaned up). States have an obligation to provide for

the security of their citizens, and society, particularly

victims of crime, rightly expects that its “moral

judgment[s] will be carried out.” Shinn, 596 U.S. at

376. “To unsettle these expectations is to inflict a

16

profound injury to the powerful and legitimate

interest in punishing the guilty.” Id. at 376–77.

The Court therefore has consistently been careful

not to impose constitutional standards that interfere

with States’ enforcement of criminal laws. For

example, the Court refused to hold that Due Process

prohibits a State from placing the burden on criminal

defendants to prove an extreme emotional

disturbance, reasoning that it “should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual States.”

Patterson v. New York, 432 U.S. 197, 201 (1977).

Likewise, the Court declined to extend Apprendi’s

limitations on States’ ability to set sentencing

standards 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 (2009).

The Court has been particularly reluctant to

establish constitutional standards of criminal

responsibility regarding a defendant’s mental

accountability. As the Court explained long ago,

“[n]othing could be less fruitful than for this Court to

be impelled into defining some sort of insanity test in

constitutional terms.” Powell v. Texas, 392 U.S. 514,

536 (1968) (plurality) (rejecting addiction as a

constitutional defense to punishment for otherwise

voluntary conduct). Instead, “doctrine[s] of criminal

responsibility” must remain “the province of the

States.” Id. at 534, 536.

And the Court has held that line time and again.

In 1958, it rejected an invitation to “require the

states” to use a particular insanity test because the

17

choice of test rested on “questions of basic policy.”

Leland v. Oregon, 343 U.S. 790, 801 (1952); id. at 803

(Frankfurter, J., dissenting) (agreeing that “it would

be indefensible to impose upon the States . . . one test

rather than another for determining criminal

culpability”). It did the same thing half a century

later, reasoning that States have the “traditional . . .

capacity to define crimes and defenses,” so “the

insanity rule . . . is substantially open to state choice.”

Clark v. Arizona, 548 U.S. 735, 749, 752 (2006). And

it rejected the argument a third time just a few years

ago. Kahler, 589 U.S. at 297 (“That choice is for

Kansas to make”).

It’s easy to see why the Eighth Amendment

should not be rewritten to impose a single conception

of mental accountability. Whether the question is

insanity or intellectual disability, determining

standards of criminal responsibility will involve

assessing enormous amounts of psychological

research, which contain “perennial gaps” and

“uncertainties.” Kahler, 589 U.S. at 280–81. “Even as

some puzzles get resolved, others emerge,” causing

“differing opinions about how far, and in what ways,

mental illness,” for example, “should excuse criminal

conduct.” Id. at 280. “[F]ormulating a constitutional

rule would reduce, if not eliminate, [the States’]

fruitful experimentation, and freeze the developing

productive dialogue between law and psychiatry into

a rigid constitutional mold.” Powell, 392 U.S. at 536–

537.

Of course, Atkins imposed a standard of criminal

responsibility based on a particular conception of

mental accountability. But even in doing so, it

18

resolved that it would leave the task of “determining

which offenders are in fact” intellectually disabled to

the States—“[a]s was [its] approach . . . with regard

to insanity.” 536 U.S. at 317 (citing Ford v.

Wainwright, 477 U.S. 399 (1986)). The Court

promised to “leave to the State[s] the task of

developing appropriate ways to enforce the

constitutional restriction upon [their] execution of

sentences.” Id.

Now is the time for the Court to make good on that

promise. Many aspects of determining which persons

are intellectually disabled are “complicated.” Hall, 572

U.S. at 714. The standards for making those

determinations should not be arrogated by federal

courts or outsourced to medical associations—who do

not have the same “historic right and obligation” as

States “to maintain peace and order within their

confines.” Bartkus v. Illinois, 359 U.S. 121, 137 (1959).

Instead, “questions about whether an individual who

has committed a proscribed act with the requisite

mental state should be relieved of responsibility due to

a lack of moral culpability are generally best resolved

by the people and their elected representatives.”

Grants Pass, 603 U.S. at 552 (cleaned up).

By deciding for itself the proper burden of proof to

determine intellectual disability, the Eleventh

Circuit’s decision ignored the space this Court

reserved for States. The Court should grant the

petition and reverse to restore States’ power to decide

these questions.

19

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

alan.hurst@ag.idaho.gov

ALAN M. HURST

Solicitor General

Counsel of Record

MICHAEL A. ZARIAN

Deputy Solicitor General

GADER WREN

Deputy Attorney General

Counsel for Amicus Curiae State of Idaho

March 17, 2025

20

ADDITIONAL COUNSEL

TIM GRIFFIN

Attorney General

State of Arkansas

DREW H. WRIGLEY

Attorney General

State of North Dakota

JAMES UTHMEIER

Attorney General

State of Florida

DAVE YOST

Attorney General

State of Ohio

THEODORE E. ROKITA

Attorney General

State of Indiana

GENTNER DRUMMUND

Attorney General

State of Oklahoma

KRIS KOBACH

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

LIZ MURRILL

Attorney General

State of Louisiana

MARTY JACKLEY

Attorney General

State of South Dakota

LYNN FITCH

Attorney General

State of Mississippi

JONATHAN SKRMETTI

Attorney General

State of Tennessee

ANDREW BAILEY

Attorney General

State of Missouri

KEN PAXTON

Attorney General

State of Texas

AUSTIN KNUDSEN

Attorney General

State of Montana

DEREK BROWN

Attorney General

State of Utah

MICHAEL T. HILGERS

Attorney General

State of Nebraska

21

WARREN PETERSON

President of the Senate

State of Arizona

STEVE MONTENEGRO

Speaker of the House of

Representatives

State of Arizona

By counsel:

Rusty D. Crandell

Majority General

Counsel

Arizona State Senate

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

By counsel:

Linley Wilson

Majority General

Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

lwilson@azleg.gov

(602) 926-5418