WASHINGTON – Before Judge Brett M. Kavanaugh joined the Supreme Court, he served on the federal appeals court for more than a decade. In a memorable 2013 dissent, he reflected on the obligations of the lower courts in the judicial hierarchy.
“It is important that we follow both the words and the music of Supreme Court rulings,” he wrote, meaning that lower court judges must follow not only the letter but also the logic of Supreme Court precedents.
The Georgia Supreme Court recently took a different approach to a death penalty case, as confirmed in a candid consensus opinion. “The reasoning behind the decisions of the United States Supreme Court does not bind lower courts,” Judge David E. Nahmias wrote in June, speaking for three members of his court. “Only stocks rule.”
This is especially true in cases involving the Eighth Amendment, which prohibits cruel and unusual punishment, he wrote. Whether imposed penalties are constitutional, the Supreme Court said, must be judged against “the evolving standards of decency that mark the progress of a maturing society.”
When it “all comes down to whether five judges decide to ‘evolve’ the Eighth Amendment a little further,” Justice Nahmias wrote, “relying on the argument alone is risky.”
The US Supreme Court will soon decide whether to hear the case challenging a Georgia law that imposes an exceptional burden on defendants who wish to be spared execution. The judges could clarify whether it is only the words or the music of their precedents that bind the lower courts.
The case involves Rodney Young, who was convicted of the 2012 murder of his estranged girlfriend’s son. Mr. Young grew up in New Jersey, where his schools classified him as “mentally retarded” in the language of the time. Nowadays they would call him mentally retarded.
A 2002 Supreme Court decision, Atkins v. Virginia, ruled that the Eighth Amendment prohibits killing people with intellectual disabilities. But Georgia’s law at issue in this case, which is unique in the nation, requires capital defendants who wish to avoid execution to be able to prove beyond a reasonable doubt that they are mentally retarded.
This is the standard that normally applies to government in criminal matters. It is said to be difficult to fulfill and, in the context of law enforcement, tolerate some guilty being released rather than risk sending innocent ones to jail. Georgia law reverses this dynamic and tolerates the execution of some mentally retarded people.
School teachers and staff testified that Mr. Young met the intellectual disability criteria required by the Atkins decision. But the jury found that Mr. Young had not cleared the daunting hurdle of proving his intellectual disability beyond a reasonable doubt and sentenced him to death.
The most important decisions of the Supreme Court in this term
Map 1 of 7
A momentous term. The US Supreme Court made several important decisions in its last term, including rulings on abortion, guns and religion. Here’s a look at some of the key cases:
school prayer. In Kennedy v. Bremerton School District, the court ruled that a Washington public high school football coach had the constitutional right to pray at the 50-yard line after his team’s games.
separation of church and state. In Carson v. Makin, the court ruled that a Maine program that excludes religious schools from a state school program constituted a violation of freedom of worship.
The Atkins ruling largely let states decide who is considered mentally retarded. But two subsequent decisions in 2014 and 2017 overturned measures that, as Justice Anthony M. Kennedy put it, “posed an unacceptable risk of people with intellectual disabilities being executed.”
Georgia law has a curious origin story. Enacted in 1988, it was the first in the nation to ban the execution of people with intellectual disabilities, 14 years before the Atkins decision. But it was designed in a hurry.
“I dropped the ball,” Jack Martin, one of the drafters of the rule, said before the Georgia House of Representatives in 2013. He and his co-author, Mr. Martin, said they didn’t want to impose a reasonable doubt, but they misplaced an important clause.
“It was just sloppy drawing,” said Mr. Martin. “I don’t think anyone intended that.”
Almost every other state requires defendants to prove that they are intellectually disabled by weighting the evidence – that is, by showing that it’s more likely than not.
Attorneys from the American Civil Liberties Union, which Mr. Young represents, explained the difference between the two standards to the Supreme Court in a recent petition, urging judges to hear his case.
“In states that apply a weight of evidence standard, approximately one-third of those who claim that they have an intellectual disability succeed in invoking Eighth Amendment protections,” they wrote. “In Georgia, not a single person convicted of first degree murder has prevailed in court and been found to be mentally retarded.”
Comparing Georgia’s approach to that of other states only hints at how unusual the law is, Mr Young’s attorneys in the US Supreme Court said.
“As far as the petitioner can ascertain,” they wrote, “there are no other circumstances in which a person alleging a violation of his or her constitutional rights is required to establish beyond reasonable doubt the underlying facts. Georgia stands alone in all constitutional law.”
Judge Charles J. Bethel disagreed with the Georgia Supreme Court’s decision to uphold the state law, saying simple logic shows that the law, in the US Supreme Court’s words, creates “an unacceptable risk” that some intellectually disabled people will be executed would.
In his unanimous opinion, Judge Nahmias, who served as legal secretary to Judge Antonin Scalia and is now the chief justice of the Georgia Supreme Court, acknowledged that the issue in the case was a narrow one and that the reasoning in the US Supreme Court Precedents “certainly cast doubt on this state’s uniquely high standard of proof.”
Judge Nahmias added another consideration that appears to be based on a realistic assessment of the US Supreme Court’s new conservative supermajority.
“If I had to guess today,” he wrote, “I would say that it is likely that the United States Supreme Court, as it currently stands, will have to decide whether Georgia’s standard of proof of intellectual disability violates the Eighth Amendment , a majority of the judges would not expand the “stocks” of the 2014 and 2017 decisions “to strike down our state’s law, regardless of the reasoning of the majority opinions in those two cases.”
