Petition for Writ of Certiorari — Byron Lewis Black, Petitioner v. Tennessee

No.

IN THE

Supreme Court of the United States

________________

BYRON LEWIS BLACK,

v.

STATE OF TENNESSEE,

________________

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TENNESSEE SUPREME COURT

________________

PETITION FOR A WRIT OF CERTIORARI

EXECUTION SCHEDULED FOR AUGUST 5, 2025, AT 10:00 AM.

_______________

OFFICE OF THE FEDERAL PUBLIC DEFENDER

FOR THE MIDDLE DIST. OF TENNESSEE

CAPITAL HABEAS UNIT

KELLEY J. HENRY*

CHIEF, CAPITAL HABEAS UNIT

AMY D. HARWELL

FIRST ASST. FED. PUB. DEFENDER

ASST. CHIEF, CAPITAL HABEAS UNIT

MARSHALL A. JENSEN

ASSISTANT FEDERAL PUBLIC DEFENDER

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-5265

Email: Kelley_Henry@fd.org

*Counsel of Record

i

CAPITAL CASE

QUESTION PRESENTED

At the time of the Founding, the common law prohibited the execution of

“idiots.” Ford v. Wainwright, 477 U.S. 399, 417 (1986). In Ford, this Court made clear

that “the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a

minimum, those modes or acts of punishment that had been considered cruel and

unusual at the time that the Bill of Rights was adopted.” Ford, 477 U.S. at 405.

Relying on these fundamental principles, Mr. Black in the lower courts sought the

opportunity to demonstrate that the Eighth Amendment prohibits his execution. The

Tennessee Supreme Court “declined” to recognize this common-law prohibition on his

execution or permit Mr. Black to prove that he qualifies for such protection. It held

that competency to be executed proceedings are limited to “Ford-based claims of

incompetency grounded in insanity[,]” thus eliminating consideration of any common

law claim other than one based upon significant mental illness. Black v. State, No.

M2000-00641-SC-DPE-CD, 2025 Tenn. LEXIS 279, at *24 (Tenn. July 8, 2025). Given

this, the question presented is:

Whether a state may refuse to provide a process by which a state inmate

may prove that he is not competent to be executed because he meets the

common law standard for the protection of “idiots”?

ii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner, petitioner-appellant below, is Byron Black.

Respondent, respondent-appellee below, is the State of Tennessee.

iii

LIST OF PROCEEDINGS

1. State v. Black, 815 S.W.2d 166 (Tenn. 1991) (direct appeal).

2. Black v. State, No. 01C01-9709-CR-00422, 1999 WL 195299 (Tenn. Crim.

App. Apr. 8, 1999), cert denied Black v. Tennessee, 528 U.S. 1192 (2000)

(post-conviction).

3. Black v. State, No. M2004-01345-CCA-R3PD, 2005 WL 2662577 (Tenn.

Crim. App. Oct. 19, 2005), cert. denied Black v. Tennessee, 549 U.S. 852

(2006) (motion to reopen post-conviction/intellectual disability).

4. Black v. Bell, 181 F. Supp. 2d 832 (M.D. Tenn. 2001) (habeas corpus).

5. Black v. Bell, No. 02-5032, 2007 U.S. App. LEXIS 30798 (6th Cir. May 30,

2007) (remanding Atkins claim).

6. Black v. Bell, No. 3:00-0764, 2008 U.S. Dist. LEXIS 33908 (M.D. Tenn. Apr.

24, 2008) (Atkins claim).

7. Black v. Bell, 664 F.3d 81 (6th Cir. 2011) (remanding Atkins claim).

8. Black v. Colson, No. 3:00-0764, 2013 WL 230664 (M.D. Tenn. Jan. 22, 2013)

(reconsideration of Atkins claim).

9. Black v. Carpenter, 866 F.3d 734 (6th Cir. 2017), cert. denied Black v. Mays,

584 U.S. 1015 (2018) (affirming the denial of the Atkins claim).

10. Black v. State, No. M202200423CCAR3PD, 2023 WL 3843397 (Tenn. Crim.

App. June 6, 2023) (intellectual disability).

11. Black v. State, No. M2000-00641-SC-DPE-CD, 2025 Tenn. LEXIS 279,

(Tenn. July 8, 2025) (proceeding below)

iv

TABLE OF CONTENTS

Page

---CAPITAL CASE ................................................................................................... i

QUESTION PRESENTED .................................................................................. i

LIST OF PARTIES TO THE PROCEEDINGS.................................................. ii

LIST OF PROCEEDINGS ................................................................................. iii

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

TABLE OF APPENDICES ..................................................................................v

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

INTRODUCTION ................................................................................................1

OPINIONS AND ORDERS BELOW...................................................................1

JURISDICTION...................................................................................................1

CONSTITUTIONAL PROVISIONS INVOLVED...............................................2

STATEMENT OF THE CASE.............................................................................2

REASONS FOR GRANTING THE WRIT ..........................................................4

I. Certiorari is warranted because tennessee’s highest court resolved an

important issue of constitutional interpretation that this court has not

fully addressed and did so in a way that conflicts with this court’s

jurisprudence ..................................................................................................5

II. Mr. Black is entitled to the common law protection of idiots..................9

A.

Characteristics of “idiocy” at common law ..................................10

B.

At common law, the protection of idiots was not confined to

solely profoundly disabled individuals ...................................................17

C.

Mr. Black meets the criteria for “idiocy” at common law. ..........21

CONCLUSION...................................................................................................24

v

TABLE OF APPENDICES

Page

---Byron Black v. State of Tennessee, TSC Order 07.08.2025 ......................A-001

Byron Black v. State of Tennessee, Memorandum and Order ..................A-014

2025 Report of Dr. Ruben Gur ....................................................................A-031

2020 Report of Dr. Daniel Martell..............................................................A-037

2021 Report of Dr.Daniel Martell...............................................................A-062

2025 Report of Dr. Daniel Martel ...............................................................A-074

2025 Report of Dr. Lee Ann Baecht............................................................A-087

2008 Report of Dr. Stephen Greenspan .....................................................A-100

2008 Report of Dr Marc Tasse ....................................................................A-120

2001 Report of Dr. Daniel Grant ................................................................A-135

2001 Report of Dr. Albert Globus ...............................................................A-146

2004 Report of Dr. Albert Globus ...............................................................A-154

2022 Report of Dr. Susan Vaught ..............................................................A-157

Declaration of Rossi Turner ........................................................................A-164

Declaration of Ross Alderman ....................................................................A-168

vi

TABLE OF AUTHORITIES

PAGE

---Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ......................................................... 3,18,21

Bevereley’s Case, (1598) 76 E.R. 1118 (K.B.) ......................................................... 16

Black v. State, No. M2000-00641-SC-DPE-CD, 2025 Tenn. LEXIS

279 (Tenn. July 8, 2025), ..................................................................................... i,1,4

Black v. State, No. M2022-00423-CCA-R3PD, 2023 WL 3843397

(Tenn. Crim. App. June 6, 2023). ............................................................................. 3

Chew v. Bank of Baltimore, 14 Md. 299 (Md. Ct. App. 1859)…………………………9

District of Columbia v. Heller, 554 U.S. 570 (2008)…………………………………..7

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022)……………………….7

Ex Parte Cramner, (1806) 33 E.R. 168 (K.B.) ………………………………..............12

Fisher v. Brown, 1 Tyl. 387, 1802 WL 745 (Vt. 1802)…………….………………….15

Ford v. Wainwright, 477 U.S. 399 (1986) ……………………………………….passim

Foster v. Means, 17 S.C. Eq. 569 (S.C. App. Eq. 1844)………………………………14

Franklin v. New York, 145 S. Ct. 831 (2025)

…………………………………...21

In re Barker, 2 Johns Ch. 232, 1816 WL 1112 (N.Y. 1816)……………………….16,20

In re Emswiler,11 Ohio Dec.10,1900 WL 1262 (Ohio Prob. 1900) …………………14

In re Hanks, 3 Johns. Ch. 567, 1818 WL 1768 (N.Y. Ch. 1818) ........................... 10

In re Lindsley, 10 A. 549 (N.J. Ch. 1887) .............................................................. 16

In re Mason, 1 Barb. 436, 1847 WL 4122 (N.Y. S. Ct. 1847) ...................... 11,14,20

In re Morgan, 7 Paige Ch. 236, 1838 WL 2811 (N.Y. 1838) .................................. 14

L’Amoureux v. Crosby, 2 Paige Ch. 422, 1831 WL 2894 (N.Y. Ch.

1831)................................................................................................................... 11,14

Lange v. California, 594 U.S. 295 (2021) ................................................................ 7

Madison v. Alabama, 586 U.S. 265 (2019) ........................................................ 6,7,8

vii

Millison v. Nicholson, 1 N.C. 612 (N.C. Super. Ct. L. & Eq. 1804) ...................... 16

Panetti v. Quarterman, 551 U.S. 930 (2007). ....................................................... 4,8

Pennsylvania v. Schneider, 59 Pa. 328 (Pa. 1915) ................................................ 14

Penington v. Thompson, 5 Del. Ch. 328 (Del. Ch. 1880) ....................................... 14

Penry v. Lynaugh, 492 U.S. 302 (1989) .............................................................. 4,21

Person v. Warren, 14 Barb. 488, 1852 WL 4762 (1852) ................................... 10,20

Ramos v. Louisiana, 590 U.S. 83 (2020) .................................................................. 7

Roberts v. State, 3 Ga. 310 (1847) .......................................................................... 20

Solem v. Helm, 463 U.S. 277 (1983)......................................................................... 5

State v. Black, No. M2000-00641-SC-DPE-CD (Tenn. Mar. 3, 2025)..................... 3

State v. Crow, 1 Ohio Dec. Reprint 586, 1853 WL 3649 (Ohio Ct.

Com. Pl. 1853)......................................................................................................... 15

Stewart’s Ex’rs v. Lispenard, 26 Wend. 255, 1841 WL 3916 (N.Y.

1841).......................................................................................................................... 9

Stubbs v. Houston, 33 Ala. 555 (Ala. 1859) ........................................................... 16

Timbs v. Indiana, 586 U.S. 146 (2019) .................................................................... 6

United States v. Jones, 565 U.S. 400 (2012) ............................................................ 7

United States v. Rahimi, 602 U.S. 680 (2024) ......................................................... 7

Constitution

U.S. Const. amend VIII ............................................................................................ 2

U.S. Const. Amend. XIV ........................................................................................... 2

Statutes

28 U.S.C. § 1257 ....................................................................................................... 1

Other Authorities

Edward Coke, Reports of Sir Edward Coke in Thirteen Parts (1826) .................... 1

Anthony Fitzherbert, La Novelle Natura Brevium (1534)................................ 5,18

Anthony Highmore, Treatise on the Law of Idiocy and Lunacy

(1822) ...................................................................................................................... 11

viii

Charles Palmer Phillips, The Law of Lunatics, Idiots, and Persons

of Unsound Mind (1858)........................................................................................... 8

Douglas G Altman & J Martin Bland, Standard deviations and

standard errors, 331 British Med. J. 903 (Oct. 15, 2005) ..................................... 21

Edward Coke, 3 Institutes of Laws of England (1680)............................................ 9

Edward Coke, 1 Institutes of the Laws of England (1633)................................. 9,11

Ellis Lewis, An Abridgement of the Criminal Law of the United

States (1847) ........................................................................................................... 12

George D. Collinson, Treatise on the Law Concerning Idiots,

Lunatics, and Other Person Non Compotes Mentis (1812) ............................. 11,12

Issac Ray, Treatise on the Medical Jurisprudence of Insanity (1838). ................. 20

J.A. Paris & J.S.M. Fonblanque, Medical Jurisprudence (1823) ......................... 17

John Locke, Essay on Human Understanding (1824)........................................... 10

Joseph Chitty, A Practical Treatise on Medical Jurisprudence, with

So Much of Anatomy, Physiology, and Pathology, and the Practice of

Medicine and Surgery as are Essential to Be Known by Members of

Parliament, Lawyers, Coroners, Magistrates, Officers in the Army

and Navy, and Private Gentlemen (1835)......................................................... 16,17

Margaret McGlynn, Idiots, Lunatics, and the Royal Prerogative in

Early Tudor England 26 J. Legal Hist., 1–20 (April 2005) .................................. 16

Matthew Hale, 1 History of Pleas of the Crown (1736) ...................................... 4,12

Matthew Hale, 3 History of Pleas of the Crown (1644) ....................................... 22

Michael Clemente, A Reassessment of Common Law Protections for

“Idiots”, 124 Yale L.J. 2746 (2015)......................................................................... 19

Serge Nicolas, et al., Sick? Or Slow? On the origins of intelligence as

a psychological object 41 Intelligence 699 (2013) .................................................. 18

Simon Jarrett, Those They Called Idiots (2020) ................................................... 11

S. Sheldon Glueck, Mental Disorder and the Criminal Law (1925) ..................... 19

Thomas W. Powell, Analysis of American Law (1878).......................................... 15

Francis Wharton & Moreton Stille, Wharton and Stille’s Medical

Jurisprudence (1905) ............................................................................... 15,15,17,19

William Blackstone, 1 Commentaries on the Laws of England (1826) ...... 10,11,13

ix

William Blackstone, 4 Commentaries on the Laws of England (1769) .................. 4

1

INTRODUCTION

History is clear that at common law, an “idiot” could not be executed for a

crime. 1 Edward Coke, Reports of Sir Edward Coke in Thirteen Parts 571 (1826).

Throughout these proceedings, Mr. Black has asserted that because of brain damage,

low IQ, inability to manage his affairs, and dementia he meets the common law

definition of an “idiot” and consequently may not be lawfully executed. In denying

relief to Mr. Black, the Tennessee courts steadfastly resisted conducting any

historical analysis of the common law at the time of the Founding. In doing so, the

court below held that, under Tennessee state law, competency claims were “limited

to adjudicating Ford-based claims of incompetency grounded in insanity.” (App. at

11a). By its holding, the Tennessee Supreme Court has written out of existence the

common law competency claim based upon “idiocy,” even though such a claim was

well recognized at the time of the Founding. Because the Tennessee Supreme Court

resolved an important constitutional issue without conducting and applying the

essential historical analysis, certiorari is necessary.

OPINIONS AND ORDERS BELOW

The order of the Tennessee Supreme Court is published and is available at

Black v. State, No. M2000-00641-SC-DPE-CD, 2025 Tenn. LEXIS 279 (Tenn. July 8,

2025), and it is attached in the appendix at App. 001a-13a. The opinion of the trial

court is also unpublished and attached at App. 014a-30a. State v. Black, No. 88-S1479 (Davidson Cnty Crim. Ct. June 5, 2025) (Memorandum and Order).

JURISDICTION

The order of the Tennessee Supreme Court denying relief to Mr. Black is a

final, appealable order. Jurisdiction is invoked pursuant to 28 U.S.C. § 1257.

1 As Mr. Black stated in the proceedings below, to our modern ears, describing any

person as an “idiot” is cruel and offensive. This pleading utilizes the common law

terms and definitions because they constitute the operative law. Counsel means no

disrespect to Mr. Black or those individuals living with any of the conditions

discussed herein.

2

CONSTITUTIONAL PROVISIONS INVOLVED

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted. U.S. Const. amend VIII.

[N]or shall any State deprive any person of life, liberty, or property without

due process of law. U.S. Const. Amend. XIV.

STATEMENT OF THE CASE

Mr. Black’s overall brain volume is three and half standard deviations below

the mean; some regions are four and half standard deviations below the mean. App.

at 031a. His cranium is filled with large pockets of fluid, indicative of wide-scale death

of brain tissue. Id. At his most recent neuropsychological evaluation, he could not

make change for a five-dollar bill and had “marked global impairment in skills

essential for independent living.” App. at 43a. He has dementia and 99 out of a 100

men his age and education level have a better memory. App. at 070.

While his brain is progressively eroding and dementia now compounds his

impairments, Mr. Black’s impaired functioning is hardly new. His childhood friend

recounts that Mr. Black could not grasp the rules of simple juvenile games like a

Tisket-a-Tasket or Red Light, Green Light. App. at 166a. While attending

underperforming, segregated schools in Nashville, Tennessee, he was so slow relative

to his peers that he was held back in the second grade. App. at 118a. Mr. Black’s high

school football coach recounts that although Mr. Black had good physical ability, “in

over 30 years as a coach, [Mr. Black] stood out as especially slow.” App. at 116a. Mr.

Black was unable to understand and execute offensive plays, such that his coach had

to create “a highly simplified playbook” for him. Id. Mr. Black was more capable of

grasping defense, where the task at hand was simpler: to run and tackle the ball

carrier. Id.

3

Mr. Black’s trial counsel recounted that after the jury retired to consider

whether Mr. Black would receive the death penalty, Mr. Black leaned over and asked

“Do I get to testify now?” App. at 168a. In an understatement, “[i]t was clear to” trial

counsel “that Byron had not understood what had occurred in the proceedings.” Id.

A half dozen experts have diagnosed Mr. Black with an intellectual disability.

App. at 061a; App. at 068a; App. at 083a; App. at 095a; App. at 119a; App. at 134a;

App. at 142a; App. at 153a. The State’s expert that concluded that Mr. Black was not

intellectually disabled at the original Atkins proceeding later reevaluated the

scientific data and found that Mr. Black meets the criteria for intellectual disability.

App. at 162a. In earlier proceedings, the State of Tennessee stipulated that Mr. Black

is intellectually disabled, but Tennessee courts denied relief on procedural grounds.

Black v. State, No. M2022-00423-CCA-R3PD, 2023 WL 3843397, at *1, *9 (Tenn.

Crim. App. June 6, 2023).

As is evident from this brief recitation, Mr. Black suffers from numerous

conditions including significant brain damage, dementia, and intellectual disability.

These conditions manifest in Mr. Black as profound deficits in memory and verbal

fluency. Mr. Black is, moreover, incapable of managing his own affairs or living

independently, even in the restrictive environment of prison.

Pursuant to the procedures outlined in Van Tran v. State, 6 S.W.3d 257 (Tenn.

1999), Mr. Black’s case was remanded to the convicting court for competency

proceedings. State v. Black, No. M2000-00641-SC-DPE-CD (Tenn. Mar. 3, 2025)

(Order). Relying upon the Tennessee Supreme Court’s instruction that such

proceedings were a forum “to assert [an inmate’s] common law and constitutional

right to challenge competency to be executed,” 2 Mr. Black filed a petition and

supporting materials demonstrating that he meets the common law criteria for

“idiocy,” which like “lunacy,” precludes his execution. The trial court “decline[d] to

wade into the asserted common law claim of ‘idiocy.’” App. at 027a; State v. Black,

2 Van Tran, 6 S.W.3d at 265 (emphasis added).

4

No. 88-S-1479, at 14 n.5 (Davidson Cnty Crim. Ct. June 5, 2025) (Memorandum and

Order). The trial court concluded that Mr. Black failed to make the threshold showing

for incompetency because he did not meet the criteria outlined in Panetti v.

Quarterman, 551 U.S. 930, 954–55 (2007). App. at 028a.

On appeal, the Tennessee Supreme Court affirmed the trial court, holding that

the procedures under Van Tran are “limited to adjudicating Ford-based claims of

incompetency grounded in insanity.” App. at 011a; Black v. State, No. M2000-00641SC-DPE-CD, 2025 Tenn. LEXIS 279, at *24 (Tenn. July 8, 2025) (Order). As such, the

court “respectfully declined” to adjudicate the case based upon the common law

prohibition on the execution of “idiots” and saw “no compelling reason for us to adopt

a standard that differs from” existing precedent. App. at 012a; Black 2025 LEXIS

279, at *25.

REASONS FOR GRANTING THE WRIT

This case simply asks this Court to “recognize[] in our law a principle that has

long resided there.” Ford v. Wainwright, 477 U.S. 399, 417 (1986). At common law,

an “idiot” was incompetent to be executed. Id. at 406–07 (citing William Blackstone,

4 Commentaries on the Laws of England 24 (1769)); see also Matthew Hale, 1 History

of Pleas of the Crown 29–30 (1736) (“The laws absolving idiots of guilt in capital

crimes can be traced directly to English statute.”). On at least two occasions this

Court has been explicit that such protection exists. Penry v. Lynaugh, 492 U.S. 302,

331 (1989); Ford, 477 U.S. at 406. Despite that clarity, this Court’s jurisprudence has

not expounded upon the meaning or scope of that protection. Nonetheless, this Court

recognized in Ford, “There is now little room for doubt that the Eighth Amendment’s

ban on cruel and unusual punishment embraces, at a minimum, those modes or acts

of punishment that had been considered cruel and unusual at the time that the Bill

of Rights was adopted.” Ford, 477 U.S. at 405. Ford’s recognition that the Eighth

Amendment protects, at a minimum, that which was prohibited by the common law

at the time of the Founding was hardly new. See, e.g., Solem v. Helm, 463 U.S. 277,

5

286 (1983) (“Although the Framers may have intended the Eighth Amendment to go

beyond the scope of its English counterpart, their use of the language of the English

Bill of Rights is convincing proof that they intended to provide at least the same

protection—including the right to be free from excessive punishments.”). While there

may be a robust debate about what, if any, role that evolving standards of decency

should have in Eighth Amendment jurisprudence, neither side of that debate doubts

the basic tenet that if a punishment was barred at the Founding, the Eighth

Amendment incorporated that prohibition. On this point, strict Originalists and

Living Constitutionalists surely agree.

The Tennessee Supreme Court mischaracterized Mr. Black’s argument as

attempting to create a “new categorical exclusion from execution.” App. at 012a. The

basis for Mr. Black’s competency claim, however, predates the Founding. As early as

the 1500s, the common law recognized that “idiots” were incompetent to be executed.

Anthony Fitzherbert, La Novelle Natura Brevium 519 (1534). There is nothing new

about Mr. Black’s claim. As detailed below, the definition of “idiocy” evolved over

centuries and was inherited by the United States when it adopted the Eighth

Amendment, which, at a minimum, codified the then-existing common law rules

against the execution of the non compos mentis.

I.

CERTIORARI IS WARRANTED BECAUSE TENNESSEE’S HIGHEST COURT

RESOLVED AN IMPORTANT ISSUE OF CONSTITUTIONAL INTERPRETATION THAT

THIS COURT HAS NOT FULLY ADDRESSED AND DID SO IN A WAY THAT

CONFLICTS WITH THIS COURT’S JURISPRUDENCE.

Under Supreme Court Rule 10(c), certiorari is appropriate when a state court

“has decided an important question of federal law that has not been, but should be,

settled by this Court.” S. Ct. R. 10(c). Here, the Tennessee Supreme Court held that

Tennessee law only permits “adjudicating Ford-based claims of incompetency

grounded in insanity.” App. at 011a. The Tennessee Supreme Court then

paradoxically held that “[c]ompetency is the only claim he is entitled to assert in this

proceeding.” Id. Accordingly, the Tennessee Supreme Court has decided that a

common law competency claim based upon any other condition besides “insanity” is

6

not cognizable under Tennessee procedure and does not warrant due process as

required by Madison, Panetti, and Ford. Tennessee now holds that regardless of

common law doctrines, an inmate is barred from asserting a common law claim that

was recognized at the Founding. Certiorari is warranted in this case: Tennessee has

improperly resolved an important issue of constitutional law that requires this

Court’s plenary review.

The Tennessee courts’ resolution of this claim is incompatible with this Court’s

existing competency jurisprudence. Ford expressly observes that “idiots”—along with

“lunatics”—may not be executed. Ford, 477 U.S. at 406. Ford is clear, moreover, that

common law prohibitions on the execution of incompetents were incorporated into the

Eighth Amendment at the time of the Founding. Id. at 405. This Court’s application

of common law in this context is hardly novel, as this Court repeatedly has held that

the proper constitutional inquiry must investigate whether a right is “‘deeply rooted

in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of

ordered liberty.’” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 237 (2022)

(quoting Timbs v. Indiana, 586 U.S. 146, 149 (2019)).

The Tennessee courts’ refusal to apply these well-established principles is

inconsistent with this Court’s jurisprudence. The Tennessee courts resisted

conducting any historical analysis of the common law or the prohibitions upon

executing the non compos mentis that existed at the time of the Founding. The

Tennessee courts’ failure to heed this Court’s direction to analyze history and

tradition to determine the scope of constitutional rights portends a dangerous

precedent where courts pick and choose when to apply such a methodology. Courts

may not—as the lower court did here—“respectfully decline” to conduct this kind of

historical analysis because this “commonplace task for any lawyer or judge” is the

core of competent constitutional analysis. New York State Rifle & Pistol Ass’n, Inc. v.

Bruen, 597 U.S. 1, 28 (2022).

7

It is widely understood that the Eighth Amendment “codified a pre-existing

right.” See District of Columbia v. Heller, 554 U.S. 570, 592 (2008) (emphasis

original); Ford, 477 U.S. at 405; Helm, 463 U.S. at 286. “The Amendment ‘was not

intended to lay down a novel principle but rather codified a right inherited from our

English ancestors.’” See Bruen, 597 U.S. at 20 (quoting Heller, 554 U.S. at 599); Helm,

463 U.S. at 286; Ford, 477 U.S. at 405. As such, this Court’s caselaw “require[s] courts

to consult history to determine the scope of that right.” Bruen, 597 U.S. at 25.

This Court’s jurisprudence holds that to animate the text of the Eighth

Amendment, courts and litigants must examine the common law at the time of the

Founding and other relevant historical materials such as legal treatises,

commentary, and state practices. See, e.g., Ramos v. Louisiana, 590 U.S. 83, 90 (2020)

(resolving the question of jury unanimity with reference to the common law, state

practices in the founding era, and opinions and treatises written soon afterward).

This is because “the Framers’ view provides a baseline for our own day: The

Amendment ‘must provide at a minimum the degree of protection it afforded when it

was adopted.’” Lange v. California, 594 U.S. 295, 309 (2021) (quoting United States

v. Jones, 565 U.S. 400, 411 (2012) (emphasis original)).

These precedents “were not meant to suggest a law trapped in amber.” United

States v. Rahimi, 602 U.S. 680, 691 (2024). Rather, the relevant inquiry is whether

Mr. Black’s claim is whether his execution is one “that our tradition is understood to

permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern

circumstances.’” Id. at 692 (quoting Bruen, 597 U.S. at 29 & n.7). “Idiocy” at common

law is a “well-established and representative historical analogue” that this Court’s

jurisprudence holds must be respected and embraced by modern constitutional law.

Bruen, 597 U.S. at 30.

In Panetti, this Court explicated stated that it did “not attempt to set down a

rule governing all competency determinations.” Panetti, 551 U.S. at 960–61. This

Court developed Panetti’s rationality test in the context of a case where the inmate

8

suffered from “gross delusions.” Id. at 960. Panetti’s rule had its origin in the common

law prohibition on the execution of “lunatics,” and is ill-suited to a common law claim

of “idiocy,” which has never historically inquired into an inmate’s rationality. 3 This

is of little surprise as the characteristics of “idiocy” predominantly focus on an

individual’s intellectual capacity and consequent deficits rather than the fixed

delusions that characterize many forms of mental illness. Panetti’s acknowledgment

that the rationality standard did not and could not govern all competency

determinations is a recognition that differing circumstances and constitutional

claims are not addressed by the rule in Panetti. While Ford, Panetti, and Madison all

derive from the common law, none of the inmates in those cases asserted a common

law claim and this Court’s decision in each relied upon evolving standards of decency,

not the common law at the time of the Founding. 4 As such, this case presents the

opportunity for this Court to instruct in how the common law is to be interpreted in

idiocy cases.

The prohibition at issue in this case has “no less logical, moral, and practical

force at present” than it did at the time of the Founding. Ford, 477 U.S. at 409.

3 “An idiot may in general be clearly identified by . . . an absence of all expression,

and a vague and unmeaning look; or by endless repetition of short sentences . . .In

fact there many ways that idiotcy [sic] is manifested, as by neglect of ordinary

decencies of life, frequently by foolish laughter, by general vacancy of aspect.”

Charles Palmer Phillips, The Law of Lunatics, Idiots, and Persons of Unsound Mind

5 (1858). In contrast, “the state of mind of the lunatic or person of unsound mind is

marked by delusion or by inconsecutive and incoherent trains of thought.” Id.

4 Justice Marshall wrote “the Eighth Amendment’s proscriptions are not limited to

those practices condemned by the common law in 1789.” Ford, 477 U.S. at 406. The

dissenters in Panetti criticized the decision as another foray into evolving standards

of decency that did not address the constitutional underpinnings of the Eighth

Amendment at the time of the Founding. Panetti, 551 U.S. at 980 (Thomas, J.,

dissenting). Similarly, Madison expressly considered whether executing an

individual with vascular dementia violated the Eighth Amendment’s evolving

standards of decency. Madison v. Alabama, 586 U.S. 265, 287 (2019) (Alito, J.,

dissenting). Thus, each of the cases in this Court’s trio of competency cases expressly

relied on evolving standards of decency and this Court has never addressed how

common law standards should be applied in these cases.

9

“Whether the aim is to protect the condemned from fear and pain without comfort of

understanding, or to protect the dignity of society itself from the barbarity of exacting

mindless vengeance, the restriction finds enforcement in the Eighth Amendment.”

Id. at 410. The common law treated the executed of an incompetent individual as a

“‘miserable spectacle’” Id. at 407 (quoting Edward Coke, 3 Institutes of Laws of

England 6 (1680)). To give meaning to these deeply engrained prohibitions, this Court

must grant certiorari and provide interpretative guidance to the lower courts.

II.

MR. BLACK IS ENTITLED TO THE COMMON LAW PROTECTION OF IDIOTS.

As explained in Ford, the common law prohibits the execution of the non

compos mentis, which includes both the “insane” and “idiots.” Ford, 477 U.S. at 406.

Under the common law—and thus the law in place at the Founding—being non

compos mentis is a broad concept that encompasses a variety of conditions that cause

individuals to be considered not of sound mind. See, e.g., Edward Coke, 1 Institutes of

the Laws of England 247 (1633). 5

The most discussed and defined of these debilitating conditions at common law

was the notion of a “lunatic.” “Lunatics” were individuals who “had understanding,

but by disease, grief, or other accident, has lost the use of his reason.” Anthony

Highmore, Treatise on the Law of Idiocy and Lunacy 2 (1822) (citing William

Much the Anglo-American common law regarding “idiocy” comes from civil

proceedings, where “idiots” were considered incompetent in a wide variety of

contexts. See, e.g., Chew v. Bank of Baltimore, 14 Md. 299, 309 (Md. Ct. App. 1859)

(“An idiot or lunatic cannot contract marriage, because marriage is a civil contract,

the basis of which is consent, which idiots and lunatics are incapable of giving, and

therefore of entering into that or any other contract.) (emphasis original); Stewart’s

Ex’rs v. Lispenard, 26 Wend. 255, 297, 1841 WL 3916, at *23 (N.Y. 1841) (“[A]ll

persons except idiots, persons of unsound mind, married women and infants, may

devise their real estate by their last will and testament duly executed.”). “Idiocy”

thus constituted a broad form of civil incompetency. Significantly, Lord Coke noted

that “idiocy” had broader effect in criminal law than it did in civil proceedings. “But

this holdeth only in civil causes; for in criminal causes, as felonie, &c. the act and

wrong of a madman shall not bee imputed to him, for that in those causes, actus non

facit reum, nisi mens sit rea, and he is amens (id est) sine mente, without his minde

or discretion; and furiosus solo furore punitur, a madman is only punished by his

madnesse.” Coke, supra, at 247b.

5

10

Blackstone, 1 Commentaries on the Laws of England 304 (1826)). Lunacy was not a

static condition. Id. at 3. The common law recognized that individuals’ level of

competency varied with the vicissitudes of mental illness. See, e.g., Person v. Warren,

14 Barb. 488, 494, 1852 WL 4762, at **5 (N.Y. Sup. Ct. 1852) (noting that lunatics

had “lucid intervals”); In re Hanks, 3 Johns. Ch. 567, 568, 1818 WL 1768, at **1 (N.Y.

Ch. 1818) (outlining the process for reevaluating lunacy). 6 There is, of course, a direct

line from this common law tradition to Ford and Panetti, each of which involved an

inmate with significant mental illness.

Often discussed alongside lunatics were “idiots.” At common law, an “idiot” was

an individual lacking intellectual capacity. Highmore, supra, at 1. “Idiots” were

“‘[t]hose who cannot distinguish, compare, and abstract, would hardly be able to

understand and make use of language, or judge, or reason to any tolerable degree;

but only a little and imperfectly about things present, and very familiar to their

senses.’” Shelford, supra, at 5 (quoting John Locke, Essay on Human Understanding

120 (1824)). It is this feature of the common law that is applicable to Mr. Black.

A. CHARACTERISTICS OF “IDIOCY” AT COMMON LAW

The defining characteristic of “idiocy” at common law was a significant deficit

of intellectual capacity. An “idiot” “is one that hath had no understanding from his

nativity; and there is by law presumed never likely to attain any.” William

Blackstone, 1 Commentaries on the Laws of England 302 (1826). One early American

treatise defined an idiot as “one without the power of reason.” Anthony Highmore,

Treatise of the Law of Idiocy and Lunacy 2 (1822). “By the very nature of these cases,

the intelligence is involved.” Francis Wharton & Moreton Stille, Wharton and Stille’s

Medical Jurisprudence 859 (1905). Although low intellectual functioning was at the

core of idiocy, three other characteristics were commonly described as associated with

6 The state court cases cited in this brief that post-date the Founding relied on

common law or statutes that incorporated common law doctrines.

11

“idiocy”: an inability to manage one’s affairs, the existence of “unsound memory,” and

the presence of brain “malformations.”

1. AN INABILITY TO MANAGE ONE’S OWN AFFAIRS

By the time of the Founding, the defining characteristic of individuals who

were non compos mentis, which included both “idiocy” and “lunatics,” was their

inability to manage their own affairs. William Blackstone, 1 Commentaries on the

Laws of England 304 (1826); George D. Collinson, Treatise on the Law Concerning

Idiots, Lunatics, and Other Person Nonn Compotes Mentis 58 (1812); Edward Coke, 1

Institutes of the Laws of England 247 (1633); see also Simon Jarrett, Those They

Called Idiots 25 (2020). Founding era common law cases often focused on whether an

individual was capable of “government of himself, and of the management of his goods

and chattels, lands, and affairs.” In re Mason, 1 Barb. 436, 437, 1847 WL 4122, at **1

(N.Y. S. Ct. 1847); L’Amoureux v. Crosby, 2 Paige Ch. 422, 427, 1831 WL 2894, at **3

(N.Y. Ch. 1831) (“[T]he jury must find distinctly that he is of unsound mind, and

mentally incapable of governing himself or of managing his affairs.”).

In his seminal Institutes of the Laws of England, Lord Coke originally defined

three categories of individuals who the law considered to be non compos mentis and

thereby incompetent to be executed: 1) “ideota which from his nativity, by a perpetual

infirmity is non compos mentis”; 2) “Lunatique that hath sometime his understanding

and sometime not;” and 3) Hee that by sicknesse, griefe, or other accident wholly

loseth his memorie and understanding.” Edward Coke, 1 Institutes of the Laws of

England 247 (1633). 7 By the third category, Lord Coke refers to dementia accidentalis

vel adventitia. Matthew Hale, 1 History of Pleas of the Crown 29–30 (1736). This

category of incompetency includes individuals “not born without reason; but, who has

lost it from sickness, grief, or other accident.” Ex Parte Cramner, (1806) 33 E.R. 168,

7 Lord Coke recognized a fourth category, not relevant here: “he that by his owne

vicious act for a time depriveth himself of his memory and understanding, as he is

drunken.” As Lord Coke went on to explain, those individuals whose insanity was

the result of their own acts were not exempt from execution. Coke, supra, at 247.

12

170 (Ch.). Individuals in each of these three categories of idiocy were incompetent to

be executed. Ellis Lewis, An Abridgement of the Criminal Law of the United States

601 (1847) (“A person made non compos mentis by sickness, or, as it been expressed,

a person afflicted with dementia accidentalis vel advenitia, is excused in criminal

cases from such as are committed while under the influence of this disorder.”).

The jurisprudence of Lord Coke is widely regarded as having expanded the

definition of what constituted non compos mentis to an additional category that

included individuals who could not manage their own affairs. By 1812, George D.

Collinson’s comprehensive treatise attributed the following rule directly to Lord

Coke: “Non compotes mentis comprehend, not only idiots and lunatics, but all other

persons, who from natural imbecility, disease, old age, or any such causes, are

incapable of managing their own affairs.” Collinson, supra, at 58.

One historian has noted the significance of Lord Coke’s influence on the law of

competency by stating:

The still quite vague legal definition of what constituted idiocy was

shaken up by the jurist Lord Coke in 1628. He defined four categories of

“non compos mentis” . . . However, Coke then added something of a

catch-all fifth category of incapacity, which he defined as “all other

persons, who from natural imbecility, disease, old age, or any such

causes, are incapable of managing their own affairs.” These “natural

imbeciles” were a new legal concept. They were not idiots, but they had

an impaired mind from birth and a question mark over their capacity . .

. This was the point at which the idea of the imbecile as a type of idiot—

a person mentally feeble from birth but not quite idiotic—was born.

Simon Jarrett, Those They Called Idiots 25 (2020). Although treatises ascribe to Lord

Coke the rule that non compos mentis includes those individuals who could not

manage their own affairs, unquestionably by 1765, when William Blackstone wrote,

the definition included such persons:

A lunatic, or non compos mentis, is one who hath had understanding,

but by disease, grief, or other accident hath lost the use of his reason. A

lunatic is indeed properly one that hath had lucid intervals: sometimes

enjoying his senses, and sometimes, not and that frequently depending

upon the change of the moon. But under the general name of non compos

mentis (which sir Edward Coke says is the most legal name) are

comprised not only lunatic, but persons under frenzies, or who lose their

intellects by disease; those that grow deaf, dumb, and blind, not being

13

born so; or such, in short as are judged by the court of the chancery

incapable of conducting their own affairs.

William Blackstone, 1 Commentaries on the Laws of England 304 (1826) (final

emphasis added). Thus, as early as the days of Lord Coke or at latest in the days of

Blackstone, non compos mentis was an umbrella term that indicated a broad form of

civil incompetency. Under that general umbrella fell “lunacy” and “idiocy,” the

definitions of which were refined by common law to include individuals the courts

deemed incapable of managing their own affairs.

An early legal treatise recounts this change in the law:

Non compos mentis was much more restricted in its signification, in the

time of Lord Hardwicke [1690–1764], than is the case at present,

excluding person incapable of managing their own affairs through mere

weakness of understanding; to who the court have been subsequently

induced, upon mature reflection, and after considerable hesitation, to

extend the same relief as to lunatics.

Collinson, supra, at 59; see also Highmore, supra, at 3 (noting Lord Coke defined

individuals as non compos mentis when they were “incapable of conducting their own

affairs”).

Founding era Anglo-American common law cases reflect this evolution and

expressly adopted a standard that included an assessment of an individuals’ capacity

for managing their own affairs into the definition of being non compos mentis.

At a later day, the decision of Lord Erskine in the case Ex parte

Cranmer, [(1806) 33 E.R. 168 (Ch.)] gave a more enlarged and extended

jurisdiction to this paternal care of the court; and he held that it

embraced cases of imbecility resulting from old age, sickness, or other

causes. The question, he said, was whether the party had become

mentally incapable of managing his affairs. In a previous case, Lord

Eldon had decided that it was not necessary, in support of a commission

in the nature of a writ de lunatico inquire, to establish lunacy; but it was

sufficient if the party was shown to be incapable of managing his own

affairs.

In re Mason, 1 Barb. at 440, 1847 WL 4122, at *3 (emphasis original); see also

Pennsylvania v. Schneider, 59 Pa. 328, 331 (Pa. 1915) (holding it was error for the

trial court to require the jury find the individual’s “mind is entirely blotted out”); In

re Emswiler, 11 Ohio Dec. 10, *13, 1900 WL 1262, at **3 (Ohio Prob. 1900) (“It is not

to be presumed, in view of the general policy of the state towards these unfortunates,

14

that a person, though apparently an imbecile to such a degree that he cannot apply

the faculties of his mind to his business, and take care of and preserve his property,

must be shown to be a complete idiot, or that he is a gibbering, slobbering, lemonheaded wild man, before a guardian for his property can be appointed.”); Penington

v. Thompson, 5 Del. Ch. 328, 363 (Del. Ch. 1880) (noting the change in the common

law doctrine and holding “where the party was not absolutely insane, but was unable

to act with any proper and provident management” it was proper to find the party

non compos mentis); Foster v. Means, 17 S.C. Eq. 569, 571 (S.C. App. Eq. 1844)

(holding an individual “a degree removed from idiocy” lacked legal capacity); In re

Morgan, 7 Paige Ch. 236, 237, 1838 WL 2811, at **1 (N.Y. Ch. 1838) (“It was formerly

doubted whether the court could proceed upon a commission which did not find the

party to be either a lunatic or an idiot. But at a more recent period, in England it was

held that the court had jurisdiction in cases where the mind had become unsound

from old age or infirmity, or any other cause of a permanent nature.”); L’Amoureux v.

Crosby, 2 Paige Ch. at 427 n.1, 1831 WL 2894, at *427 n.1 (“The jurisdiction of the

court over the person and property of persons of unsound mind is not restricted to

cases of idiocy or lunacy, strictly speaking; it extends also to cases of every person

who, in consequence of old age, disease, or any other cause, is in such a state of mental

imbecility as to be incapable of conducting his affairs with common prudence, and

leaves him liable to become the victim of his own folly, or the fraud of others; but the

jurisdiction should be assumed and exercised with great caution, and the case should

be clear.”).

Reflecting on these changes, the widely regarded 19th century scholar of

medical jurisprudence Francis Wharton observed:

Idiocy, therefore, represents a state of arrested development. The defect

dates back to a period in which the brain was still in process of

formation; consequently, to a period preceding birth; or, at least, to a

period in very early life, before the brain of the infant or young child had

fully developed. Imbecility is only a milder grade of idiocy and is often

found in those patients whose arrest of developments dates from early

childhood. The distinction, therefore, between idiocy and imbecility is

quite arbitrary; the two conditions merge into one another.

15

Wharton, et al., supra, 858. The notion that “idiocy” and “imbecility” merge is born

out in case law. See, e.g., Fisher v. Brown, 1 Tyl. 387, 404, 1802 WL 745, at *10 (Vt.

1802) (“If they have not arrived at years of discretion, or if of adult age they are

incapacitated by reason of idiocy, insanity, total imbecility, or other dispensation of

Divine Providence, the law will avoid their contract, and has provided guardians to

contract for them.”). Similarly, in State v. Crow the court noted that all of the

definitions of “idiocy:”

imply either a weakness or perversion of the mind or its powers, not

their destruction. The powers are still all present, but in an impaired

and weakened state. Hence, an idiot cannot be said to have no will, but

a will weakened and impaired, a will acting, but not acting in conformity

to those rules, and motives, and views, which control the action of the

will in persons of sound mind.

1 Ohio Dec. Reprint 586, 588, 1853 WL 3649, at *2 (Ohio Com. Pl. 1853) (emphasis

original).

2. UNSOUND MEMORY

Another defining characteristic of “idiocy” at common law was the presence of

“unsound memory.” Thomas W. Powell, Analysis of American Law 550 (1878)

(defining “idiots” as “those who are person of unsound memory and understanding

from their nativity, or such as become so by the visitation of God, as by sickness or

accident”); Millison v. Nicholson, 1 N.C. 612, 616 (N.C. Super. Ct. L. & Eq. 1804)

(“[H]e who is of unsound memory hath not any manner of discretion.”); Bevereley’s

Case, (1598) 76 E.R. 1118, 1122 (K.B.). One influential common law medical treatise

stated that “[f]rom the defective condition or dimension of the brain of an idiot, his

powers of attention are so small that he cannot even correctly perceive or acquire a

new idea, and consequently his memory of it will be comparatively defective.” Joseph

Chitty, A Practical Treatise on Medical Jurisprudence, with So Much of Anatomy,

Physiology, and Pathology, and the Practice of Medicine and Surgery as are Essential

to Be Known by Members of Parliament, Lawyers, Coroners, Magistrates, Officers in

the Army and Navy, and Private Gentlemen 327 (1835). So essential was memory to

conceptions of “idiocy” that one historian remarked that “[w]hen lawyers discussed

16

idiots and lunatics, they commonly referred to them in terms of memory; thus an idiot

or lunatic was of non sane memoriae.” Margaret McGlynn, Idiots, Lunatics, and the

Royal Prerogative in Early Tudor England 26 J. LEGAL HIST., at 7 (April 2005).

Common law assessments of unsound memory, like the overall assessment of

non compos mentis, examined an individual’s capacity to manage his or her own

affairs. For example, the Alabama Supreme Court held that an individual must have

“memory enough to understand the business in which he is engaged.” Stubbs v.

Houston, 33 Ala. 555, 567 (Ala. 1859); accord In re Lindsley, 10 A. 549, 549 (N.J. Ch.

1887) (“The unsoundness of mind, then, from whatever cause it arises, must be such

as to deprive the person, concerning whom the inquiry is made, of ability to manage

his estate and himself.”). Many cases recognized that individuals may become of

unsound memory due to aging or what in modern terms is referred to as dementia.

See, e.g., In re Barker, 2 Johns Ch. 232, 234, 1816 WL 1112, at **1 (N.Y. Ch. 1816)

(noting that one may be rendered incompetent by “the imbecility of extreme old age”).

Unsound memory was understood as a constituent part of “idiocy” and was often used

interchangeably with “idiocy.” See, e.g., Chitty, supra, at 329 (“So essential is the

power of memory to the perfect mind, that in some of our older statutes the expression

‘unsound memory’ or ‘non-sane memory’ was used to denote as well an idiot and

lunatic as every person incapable of managing his own affairs.”). Accordingly, the

existence of significant deficits of memory that impaired an individual’s ability to

manage his own affairs were prima facie evidence of being non compos mentis. Hale,

supra, at 30.

3. BRAIN MALFORMATION

Through the nineteenth century, “idiocy” increasingly, though not exclusively,

was defined with reference to observable medical characteristics. Wharton, for

example, observed that oftentimes evidence of “idiocy” was apparent upon

examination of the brain.

17

It follows that idiocy is sometimes associated with gross malformations

of the brain—defects never seen in insanity. But these malformations

vary widely, from a slight defect to an almost complete absence of the

organ. In some cases, however, even of a low grade of idiocy and

imbecility, there is no such gross malformation, but mental faculties

have not properly developed; doubtless because of the defects in the finer

elements of the brain-mass, such the nerve cells in the cortex.

Wharton, et al., supra, at 858. Earlier treatises concur: “In cases of congenital idiotcy

[sic] there will not be much difficulty in pronouncing judgment, for as it arises from

malformation of the cerebral organ, the diagnosis must be adverse to every hope of

recovery.” J.A. Paris & J.S.M. Fonblanque, Medical Jurisprudence 308 (1823); see

also Chitty, supra, at 270 (“Idiotism is generally the result of an original

malformation of the cranium, sometimes in respect of a subsequent thickening, but

more frequently in respect to shape; both of which diminish the internal cavity and

consequently lessen the volume or capacity of the brain.”).

These observations about brain malformation are significant on a few levels.

First, the level of brain malformation in “idiots” varied widely, ranging from slight

defects to almost complete absence of the organ altogether. This again emphasizes

that, while profoundly disabled individuals were certainly “idiots” at common law, a

severe level of disability was not required to be considered afflicted with the condition.

Hale, supra, at 29 (noting that indications of profound disability “may be evidences,

yet they are too narrow”). Furthermore, this analysis reflects the common law

understanding of brain disorders and understanding that observable defects often

resulted in “idiocy.” While not present in all cases of “idiocy,” brain defects, according

to these sources, were strong evidence of “idiocy.”

B. AT COMMON LAW, THE PROTECTION OF IDIOTS WAS NOT CONFINED TO

SOLELY PROFOUNDLY DISABLED INDIVIDUALS.

Though this Court has not defined how incompetence to be executed due to

common law idiocy is to be determined, in dissent in Atkins v. Virginia, Justice Scalia

noted, incorrectly, that “idiots generally had an IQ of 25 or below.” 536 U.S. 304, 340

(2002) (Scalia, J., dissenting). In support of this proposition, Justice Scalia cited

Anthony Fitzherbert’s La Novelle Natura Brevium: “An idiot is ‘such a person who

18

cannot account or number twenty pence, nor can tell who was his father or mother,

nor how old he is, etc., so as it may appear that he hath no understanding of reason

what shall be for his profit, or what for his loss.’” Id. at 340 (quoting Fitzherbert,

supra, 519. Justice Scalia’s reliance on Fitzherbert for his definition of idiots suffers

from two fundamental problems: he quotes Fitzherbert accurately but not completely

thereby distorting Fitzherbert’s meaning and to the extent that Fitzherbert’s rule

operated historically, it was no longer in effect at the time of the Founding. 8

First, Justice Scalia omitted Fitzherbert’s next sentence from his citation

which clarifies that Justice Scalia’s reading of Fitzherbert is not correct. Fitzherbert’s

next sentence demonstrates that his early definition of idiocy was broader than

Justice Scalia’s quotation indicates: “ . . . But if he have such understanding that he

know and understand letters, and to reade by teaching or information of another man,

then it seemth he is not a Sot, nor natural Idiot.” Fitzherbert, supra, at 519. The

importance of the omitted sentence is consistently recognized by commentators:

“From the second portion of his definition, however, it seems clear that Fitzherbert,

like his predecessors and successors, did not intend his definition to be categorically

exclusive of any other means of determining a defendant’s idiocy.” S. Sheldon Glueck,

Mental Disorder and the Criminal Law 128 (1925) (emphasis added). While the first

sentence delineates one extreme (an individual who cannot count to twenty or name

8 It is perplexing how Justice Scalia could define idiocy at common law using an IQ

score. The first standardized IQ test was the Binet-Simon Intelligence Test

developed in 1905. Serge Nicolas, et al., Sick? Or Slow? On the origins of intelligence

as a psychological object 41 Intelligence 699, 700–01 (2013). Common law caselaw,

unsurprisingly, has no reference to standardized testing as a means to determine

“idiocy.” Similarly, it is difficult to see how an individual with an IQ of 25 would

even be capable of murder except in the most obscure and unusual circumstances.

As Dr. Martell’s report on the subject recounts, an individual with an IQ of 25 is

profoundly disabled and requires near constant care from others in order to survive.

Such an individual would “function at the level of a toddler or infant.” App. at 085.

The idea that at common law such individuals committed crimes in sufficient

numbers to warrant an entire developed legal doctrine prohibiting their execution

is dubious. Moreover, a cursory read of common law cases reveals that the subject

of those cases was not limited to individuals with profound limitations.

19

his parents), the second sentence points to the opposite extreme, suggesting that

those that can learn to read seem to not be “idiots”—but may, in fact, be. Michael

Clemente, A Reassessment of Common Law Protections for “Idiots”, 124 YALE L.J.

2746, 2768–69 (2015). Fitzherbert’s twenty pence test was “merely . . . one of the

convenient methods known to his day.” Glueck, supra, at 128. After all, “[t]here is

certainly a wide gap between the mental condition of an idiot who can not ‘number

twenty pence’ or ‘tell who his father or mother’ and of one who can not acquire the

much more intricate accomplishment of understanding ‘his letters,’ and reading.” Id.

at 128–29. Thus, contrary to Justice Scalia’s contentions, Fitzherbert’s twenty-pence

test was not a definitive test nor did Fitzherbert intend it to be so.

Second, strong historical evidence indicates that as early as the 17th and

certainly by the early 18th century, the common law had rejected the notion that

“idiots” were limited to those who met Fitzherbert’s twenty pence test. Francis

Wharton reported: “[T]o confine idiocy and imbecility within such a rule is simply to

revert to the crude test promulgated by Fitzherbert, which the Chief Lord Hale, as

we have seen, condemned more than two centuries ago.” Wharton, et al., supra, at

868–69. In In re Mason, the court discussed how some earlier case law hewed closely

to the Fitzherbert’s test, but subsequent case law settled that the prohibition had a

more “extended jurisdiction.” In re Mason, 1 Barb. at 440, 1847 WL 4122, at *3; accord

Person, 14 Barb. at 495, 1852 WL 4762, at **5 (“Latterly a different doctrine has

prevailed.”); Roberts v. State, 3 Ga. 310, 329 (1847) (“The improvements in the science

of medical jurisprudence, a more enlarged benevolence, and a clearer sense of

Christian obligation, have relaxed the cruel severity of the earlier doctrines.”); In re

Barker, 2 Johns. Ch. at 233, 1816 WL 1112, at *1 (“Mere imbecility of mind, not

amounting to idiocy or lunacy, has not, until very lately, been considered in the

English Court of Chancery, as sufficient to interfere with the liberty of the subject

over his person and property.”).

20

Although “idiocy” at common law focused on individuals’ intellectual deficits,

it did not require that an individual exhibit no abilities or strengths. Common law

sources recognized that “idiots” were not devoid of reason or intellect and, in fact,

exhibited skills that “manifested in more or less perfection.” Issac Ray, Treatise on

the Medical Jurisprudence of Insanity 88 (1838). Issac Ray recounted an individual

“who learned names, dates, numbers, history, and repeated them all mechanically,

but was destitute of all power of combining and comparing his ideas and was

incapable of being engaged in employment.” Id. Furthermore, “these defective beings

are not beyond the reach of education.” Id. Ray likewise noted that “idiots” often had

the capacity for a degree of interpersonal reciprocity and religious observance.

“Among the moral sentiments, it is not uncommon to find self-esteem, love of

approbation, religious veneration, and benevolence, bearing a prominent part, if not

constituting their entire character, and thus producing a slight approximation of

humanity.” Id.

Accordingly, the historical record indicates that the twenty-pence test was not

regarded as the operative test of “idiocy” at the time of the Founding. As

demonstrated above, the “idiocy” inquiry had drastically shifted and by the time of

the Founding an individual who was incapable of managing his own affairs was

incompetent. Although low intellectual functioning continued to be at the core of

“idiocy,” a profound intellectual disability was not required.

Though the full court has not engaged with the definition of common law idiocy,

the definitions provided in Penry and Justice Scalia’s dissent in Atkins are historically

inaccurate and did not attempt the type of comprehensive historical analysis this

Court’s jurisprudence requires. They are also dicta. As our understanding of the law

in place at the time of the Founding improves, our fidelity to that tradition must keep

pace. See Franklin v. New York, 145 S. Ct. 831, 831 (2025) (Alito, J., dissenting from

the denial of certiorari) (“Historical research now calls into question Crawford’s

21

understanding of the relevant common law rules at the time of the adoption of the

Sixth Amendment[.]”).

C. MR. BLACK MEETS THE CRITERIA FOR “IDIOCY” AT COMMON LAW.

In the context of intellectual disability determinations under the Eighth

Amendment, this Court has opted to utilize a standard that defines “subaverage” as

those individuals whose abilities are more than two standard deviations below the

mean. Atkins, 536 U.S. at 318; see also Moore, 581 U.S. at 8 (“Moore’s performance

fell roughly two standard deviations below the mean in all three skill categories” of

adaptive behavior.) (emphasis in original); Hall, 572 U.S. at 711. A person whose

performance is two standard deviations below the norm means that over 95 percent

of the population performs better on the measurement. See Douglas G Altman & J

Martin Bland, Standard deviations and standard errors, 331 British Med. J. 903, 903

(Oct. 15, 2005) (“For data with a normal distribution, about 95% of individuals will

have values within 2 standard deviations of the mean, the other 5% being equally

scattered

above

and

below

these

limits.”),

available

at

https://doi.org/

10.1136/bmj.331. 7521.903 (last visited July 11, 2025).

A similar standard can be applied to each of the characteristics of “idiocy”

discussed above. In each of these categories, Mr. Black functions at least two standard

deviations below the mean and in certain categories is more than four times below

the mean. Such a standard is faithful both to this Court’s precedents and to the

common law, which fundamentally attempted to identify individuals whose

functioning was such an outlier that his execution “can be no example to others.”

Ford, 477 U.S. at 407 (quoting Matthew Hale, 3 History of Pleas of the Crown 6

(1644)).

As discussed above, the central characteristic of “idiocy” is a deficit in

intellectual capacity. Every empirically valid IQ tested administered to Mr. Black

places his IQ in the intellectually disabled range. App. at 043a; 092a-095a (compiling

data); 112a-14 (same); 129a-33a (same); 138a-40a (same); 159a (same). Numerous

22

experts have diagnosed him with an intellectual disability. Mr. Black’s deficits in

intellectual capacity are also demonstrated by informants from Mr. Black’s childhood

who recollect that he was unable to grasp the rules of simple childhood games. He

was held back in second grade and his reading and math abilities are in the bottom

percentiles.

Mr. Black has always been incapable of managing his own affairs. Prior to his

incarceration at age 32, Mr. Black never lived independently, did not know how to

perform basic functions like doing laundry or cooking, and did not have a checking

account. App. at 116a. At present, Mr. Black’s ability to manage his own affairs has

deteriorated significantly. App. at 080a. Even in the prison, he is assigned an inmate

helper to assist him with tasks like laundry, using the microwave, and cleaning his

cell. Objective neuropsychological testing shows that Mr. Black cannot safely take

care of himself and exhibits severe deficits in the areas of health, safety, money

management, and problem solving. He has “marked global impairment in skills

necessary for independent living.” App. at 080a.

Mr. Black’s ability to care for himself and navigate in his limited world is

further compromised by the debilitating effects of progressive dementia. As a result,

99 out of 100 individuals his age and education have a better memory. App. at 082a.

He struggles to express himself and less than one in 10,000 individuals have deficits

in verbal fluency as bad as his. Id. His higher order executive functioning and

problem-solving abilities are extremely limited and have deteriorated significantly in

recent years. Id.

Finally, brain imaging studies show that Mr. Black’s total brain volume is

three and half standard deviations below the mean. Appx. At 031a. Some parts of Mr.

Black’s brain exhibit volumes more than four standard deviations below the mean.

Id. Imaging shows large deposits of fluid inside of his skull, an indication that his

brain tissue has died and been eroded. Id.

23

The historical review above shows that the existence of brain malformation,

low intellectual functioning, an inability to manage one’s own affairs, and unsound

memory were conclusive proof of “idiocy” at common law. Mr. Black exhibits deficits

in all four areas. These deficits are extreme and in each category Mr. Black’s

functioning is more compromised than at least 95% of the population.

Accordingly, Mr. Black meets the criteria for “idiocy” at common law.

24

CONCLUSION

For the foregoing reasons, this Court should grant this petition for a writ of

certiorari.

Respectfully submitted,

OFFICE OF THE FEDERAL PUBLIC DEFENDER

FOR THE MIDDLE DIST. OF TENNESSEE

CAPITAL HABEAS UNIT

KELLEY J. HENRY*

Chief, Capital Habeas Unit

AMY D. HARWELL

First Asst. Fed. Pub. Defender

Asst. Chief, Capital Habeas Unit

MARSHALL A. JENSEN

Assistant Federal Public Defender

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax:

(615) 736-5265

Email: Kelley_Henry@fd.org

BY: /s/ Kelley J. Henry

*Counsel of Record