Written Materials for Supreme Court Review – 8th Amendment
Instructor: Joel Oster
I.
Hall v. Florida, 134 S.Ct. 1986 (2014)
a. Facts: After the Supreme Court held that the Eighth and Fourteenth
Amendments forbid the execution of persons with intellectual disability, see
Atkins v. Virginia, 536 U.S. 304, 321, Hall asked a Florida state court to vacate
his sentence, presenting evidence that included an IQ test score of 71. The
court denied his motion, determining that a Florida statute mandated that he
show an IQ score of 70 or below before being permitted to present any
additional intellectual disability evidence. The State Supreme Court rejected
Hall's appeal, finding the State's 70-point threshold constitutional.
b. The Supreme Court held that the State's threshold requirement, as
interpreted by the Florida Supreme Court, is unconstitutional.
c. The Eighth Amendment prohibits the execution of persons with intellectual
disability. No legitimate penological purpose is served by executing the
intellectually disabled. Prohibiting such executions also protects the integrity
of the trial process for individuals who face “a special risk of wrongful
execution” because they are more likely to give false confessions, are often
poor witnesses, and are less able to give meaningful assistance to their
counsel.
d. Florida's rule disregards established medical practice. On its face, Florida's
statute could be consistent with the views of the medical community
discussed in Atkins. It defines intellectual disability as the existence of
concurrent deficits in intellectual and adaptive functioning, long the defining
characteristic of intellectual disability. And nothing in the statute precludes
Florida from considering an IQ test's standard error of measurement (SEM),
a statistical fact reflecting the test's inherent imprecision and acknowledging
that an individual score is best understood as a range, e.g., five points on
either side of the recorded score. As interpreted by the Florida Supreme
Court, however, Florida's rule disregards established medical practice in two
interrelated ways: It takes an IQ score as final and conclusive evidence of a
defendant's intellectual capacity, when experts would consider other
evidence; and it relies on a purportedly scientific measurement of a
defendant's abilities, while refusing to recognize that measurement's
inherent imprecision. While professionals have long agreed that IQ test
scores should be read as a range, Florida uses the test score as a fixed
number, thus barring further consideration of other relevant evidence, e.g.,
deficits in adaptive functioning, including evidence of past performance,
environment, and upbringing.
e.
II.
When a defendant's IQ test score falls within the test's acknowledged and
inherent margin of error, the defendant must be able to present additional
evidence of intellectual disability, including testimony regarding adaptive
deficits. This legal determination of intellectual disability is distinct from a
medical diagnosis but is informed by the medical community's diagnostic
framework, which is of particular help here, where no alternative intellectual
disability definition is presented, and where this Court and the States have
placed substantial reliance on the medical profession's expertise.
Miller v. Alabama, 132 S.Ct. 2455 (2012)
a. Facts: Two 14-year-olds were convicted of murder and sentenced to a
mandatory term of life imprisonment without the possibility of parole. In No.
10-9647, petitioner Jackson accompanied two other boys to a video store to
commit a robbery; on the way to the store, he learned that one of the boys
was carrying a shotgun. Jackson stayed outside the store for most of the
robbery, but after he entered, one of his co-conspirators shot and killed the
store clerk. Arkansas charged Jackson as an adult with capital felony murder
and aggravated robbery, and a jury convicted him of both crimes. The trial
court imposed a statutorily mandated sentence of life imprisonment without
the possibility of parole. Jackson filed a state habeas petition, arguing that a
mandatory life-without-parole term for a 14-year-old violates the Eighth
Amendment. Disagreeing, the court granted the State's motion to dismiss.
The Arkansas Supreme Court affirmed.
b. In No. 10-9646, petitioner Miller, along with a friend, beat Miller's neighbor
and set fire to his trailer after an evening of drinking and drug use. The
neighbor died. Miller was initially charged as a juvenile, but his case was
removed to adult court, where he was charged with murder in the course of
arson. A jury found Miller guilty, and the trial court imposed a statutorily
mandated punishment of life without parole. The Alabama Court of Criminal
Appeals affirmed, holding that Miller's sentence was not overly harsh when
compared to his crime, and that its mandatory nature was permissible under
the Eighth Amendment.
c. The Court held that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile homicide
offenders.
d. The Eighth Amendment's prohibition of cruel and unusual punishment
guarantees individuals the right not to be subjected to excessive sanctions.
That right flows from the basic precept of justice that punishment for crime
should be graduated and proportioned to both the offender and the offense.
e. Two strands of precedent reflecting the concern with proportionate
punishment come together here. The first has adopted categorical bans on
sentencing practices based on mismatches between the culpability of a class
of offenders and the severity of a penalty. Several cases in this group have
specially focused on juvenile offenders, because of their lesser culpability.
Thus, Roper v. Simmons held that the Eighth Amendment bars capital
punishment for children, and Graham v. Florida, 560 U.S. ___, 130 S. Ct. 2011,
176 L. Ed. 2d 825, concluded that the Amendment prohibits a sentence of life
III.
without the possibility of parole for a juvenile convicted of a nonhomicide
offense. Graham further likened life without parole for juveniles to the death
penalty, thereby evoking a second line of cases. In those decisions, this Court
has required sentencing authorities to consider the characteristics of a
defendant and the details of his offense before sentencing him to death. Here,
the confluence of these two lines of precedent lead to the conclusion that
mandatory life without parole for juveniles violates the Eighth Amendment.
Glossip v. Gross, 135 S.Ct. 2726 (2015)
a. Facts: After Oklahoma adopted lethal injection as its method of execution, it
settled on a three-drug protocol of (1) sodium thiopental (a barbiturate) to
induce a state of unconsciousness, (2) a paralytic agent to inhibit all
muscular-skeletal movements, and (3) potassium chloride to induce cardiac
arrest. In Baze v. Rees, 553 U.S. 35, the Court held that this protocol does not
violate the Eighth Amendment's prohibition against cruel and unusual
punishments. Anti-death-penalty advocates then pressured pharmaceutical
companies to prevent sodium thiopental (and, later, another barbiturate
called pentobarbital) from being used in executions. Unable to obtain either
sodium thiopental or pentobarbital, Oklahoma decided to use a 500milligram dose of midazolam, a sedative, as the first drug in its three-drug
protocol.
b. Oklahoma death-row inmates filed a 42 U.S.C. §1983 action claiming that the
use of midazolam violates the Eighth Amendment. Four of those inmates filed
a motion for a preliminary injunction and argued that a 500-milligram dose
of midazolam will not render them unable to feel pain associated with
administration of the second and third drugs. After a three-day evidentiary
hearing, the District Court denied the motion. It held that the prisoners failed
to identify a known and available alternative method of execution that
presented a substantially less severe risk of pain. It also held that the
prisoners failed to establish a likelihood of showing that the use of
midazolam created a demonstrated risk of severe pain. The Tenth Circuit
affirmed.
c. The Supreme Court held that the petitioners have failed to establish a
likelihood of success on the merits of their claim that the use of midazolam
violates the Eighth Amendment.
d. To obtain a preliminary injunction, petitioners must establish, among other
things, a likelihood of success on the merits of their claim. To succeed on an
Eighth Amendment method-of-execution claim, a prisoner must establish
that the method creates a demonstrated risk of severe pain and that the risk
is substantial when compared to the known and available alternatives.
e. Petitioners failed to establish that any risk of harm was substantial when
compared to a known and available alternative method of execution.
f. Petitioners have suggested that Oklahoma could execute them using sodium
thiopental or pentobarbital, but the District Court did not commit a clear
error when it found that those drugs are unavailable to the State.
IV.
g. The District Court did not commit clear error when it found that midazolam
is likely to render a person unable to feel pain associated with administration
of the paralytic agent and potassium chloride.
h. Several initial considerations bear emphasis. First, the District Court's factual
findings are reviewed under the deferential “clear error” standard. Second,
petitioners have the burden of persuasion on the question whether
midazolam is effective. Third, the fact that numerous courts have concluded
that midazolam is likely to render an inmate insensate to pain during
execution heightens the deference owed to the District Court's findings.
Finally, challenges to lethal injection protocols test the boundaries of the
authority and competency of federal courts, which should not embroil
themselves in ongoing scientific controversies beyond their expertise.
i. The State's expert presented persuasive testimony that a 500-milligram dose
of midazolam would make it a virtual certainty that an inmate will not feel
pain associated with the second and third drugs, and petitioners' experts
acknowledged that they had no contrary scientific proof. Expert testimony
presented by both sides lends support to the District Court's conclusion.
Evidence suggested that a 500-milligram dose of midazolam will induce a
coma, and even one of petitioners' experts agreed that as the dose of
midazolam increases, it is expected to produce a lack of response to pain. It is
not dispositive that midazolam is not recommended or approved for use as
the sole anesthetic during painful surgery. First, the 500-milligram dose at
issue here is many times higher than a normal therapeutic dose. Second, the
fact that a low dose of midazolam is not the best drug for maintaining
unconsciousness says little about whether a 500-milligram dose is
constitutionally adequate to conduct an execution. Finally, the District Court
did not err in concluding that the safeguards adopted by Oklahoma to ensure
proper administration of midazolam serve to minimize any risk that the drug
will not operate as intended.
j. Petitioners' speculative evidence regarding midazolam's “ceiling effect” does
not establish that the District Court's findings were clearly erroneous. The
mere fact that midazolam has a ceiling above which an increase in dosage
produces no effect cannot be dispositive, and petitioners provided little
probative evidence on the relevant question, i.e., whether midazolam's
ceiling effect occurs below the level of a 500-milligram dose and at a point at
which the drug does not have the effect of rendering a person insensate to
pain caused by the second and third drugs. Petitioners attempt to deflect
attention from their failure of proof on this point by criticizing the testimony
of the State's expert. They emphasize an apparent conflict between the
State's expert and their own expert regarding the biological process that
produces midazolam's ceiling effect. But even if petitioners' expert is correct
regarding that biological process, it is largely beside the point. What matters
for present purposes is the dosage at which the ceiling effect kicks in, not the
biological process that produces the effect.
Kansas v. Gleason
a. Facts: Sidney Gleason, Damien Thompson, Ricky Galindo, Brittany Fulton,
and Mikiala Martinez robbed Paul Elliott at knifepoint in his home. Gleason
and Thompson then drove to Martinez’ home after discovering that police
had interviewed Martinez and Fulton about the robbery. There, Gleason shot
and killed Martinez’ boyfriend, Darren Wornkey. Gleason and Thompson
then drove Martinez to a rural area where Thompson shot and killed her. The
State charged both Gleason and Thompson with the capital murders of
Martinez and Wornkey, first-degree premeditated murder and aggravated
kidnapping of Martinez, and attempted first-degree murder and aggravated
robbery of Elliot.
b. At trial, the jury found Gleason guilty of, among other charges, capital murder
for the deaths of Martinez and Wornkey. During the penalty phase, the State
sought to impose the death penalty, which required the jury to find
unanimously, beyond a reasonable doubt, that aggravating circumstances
existed, and that their existence was not outweighed by any mitigating
circumstances. The State alleged four aggravating circumstances: (1)
Gleason had a prior felony conviction for causing injury or death; (2) Gleason
intentionally or knowingly “killed or created a great risk of death to more
than one person;” (3) Gleason committed the crime to escape legal
responsibility; and (4) Martinez was killed in order to silence her potential
testimony against Gleason. In response, Gleason presented mitigating
circumstances, such as his family’s love for him, his relatively young age at
the time of the crime, the public’s adequate protection with his
imprisonment, and his mother’s lack of care for him when he was a child.
c. The court instructed the jury that “[t]he determination of what are mitigating
circumstances is for you as jurors to decide under the facts and
circumstances of the case. Mitigating circumstances are to be determined by
each individual juror when deciding whether the State has proved beyond a
reasonable doubt that the death penalty should be imposed.” The jury
unanimously sentenced Gleason to death and the court approved the guilt
and penalty verdicts.
d. The Kansas Supreme Court affirmed the conviction, but reversed Gleason’s
sentencing and remanded it to the district court, holding that the district
court failed to properly instruct the jury. The court stated that the district
court failed to instruct the jury that the existence of mitigating circumstances
did not need to be proven beyond a reasonable doubt. The court found that
the jury instruction violated the Eighth Amendment because there was a
reasonable likelihood that the jury applied the instruction in a way that
prevented the jurors from considering relevant mitigating evidence.
e. The issue before the United States Supreme Court is whether the Eighth
Amendment requires that a capital-sentencing jury be affirmatively
instructed that mitigating circumstances “need not be proven beyond a
reasonable doubt,” as the Kansas Supreme Court held in this case, or instead
whether the Eighth Amendment is satisfied by instructions that, in context,
make clear that each juror must individually assess and weigh any mitigating
circumstances.