WASHINGTON — Before joining the Supreme Court, Judge Brett M. Kavanaugh served on a federal appeals court for more than a decade. In a memorable 2013 dissent, he reflected on the obligations of lower courts in the judicial hierarchy.
“It is essential that we follow both the words and the music of the Supreme Court’s opinions,” he wrote, meaning lower court judges must follow not only the letter but the logic of the Supreme Court’s precedents.
The Georgia Supreme Court took a different approach in a recent death penalty case, as a candid consensus of opinion acknowledged. “The reasoning of the decisions of the Supreme Court of the United States is not binding on lower courts,” Judge David E. Nahmias wrote in June, speaking to three members of his court. “Only the corporations rule.”
This was especially true, he wrote, in cases involving the Eighth Amendment, which precludes cruel and unusual punishment. Whether given sentences are constitutional must be judged by “the evolving standards of decency that mark the progress of a maturing society,” the Supreme Court said.
When “it all comes down to whether five judges decide to ‘evolve’ the Eighth Amendment a little bit more,” Judge Nahmias wrote, “it’s risky to rely on reasoning alone.”
The US Supreme Court will soon decide whether the case, which challenges a Georgian law that imposes an extraordinary burden on capital defendants who want to be spared execution, will soon decide whether it will hear the case. In doing so, the judges could clarify whether it is only the words or also the music of their precedents that bind lower courts.
The case concerns Rodney Young, who was convicted in 2012 of the murder of his estranged girlfriend’s son. Mr. Young grew up in New Jersey, where, in the language of the time, his schools classified him as “mentally retarded.” Today they would call him intellectually retarded.
A 2002 Supreme Court decision, Atkins v. Virginia, ruled that the Eighth Amendment prohibits putting the mentally handicapped to death. But the Georgian law at issue in this case requires capital defendants who wish to be spared execution to prove beyond reasonable doubt that they are intellectually disabled.
That is the standard that usually applies to the government in criminal cases. It is intended to be difficult to answer and, in the context of prosecutions, is intended to tolerate some guilty parties going free rather than risk sending innocents to prison. Georgian law reverses this dynamic and tolerates the executions of some mentally retarded people.
Teachers and school officials testified that Mr. Young met the intellectual disability criteria required by the Atkins decision. But the jury found that Mr. Young had not overcome the daunting hurdle of proving he was intellectually disabled beyond reasonable doubt, and sentenced him to death.
The Atkins decision largely left states to decide who was classed as intellectually disabled. But two subsequent decisions, in 2014 and 2017, abolished measures that, as Judge Anthony M. Kennedy put it, “created an unacceptable risk that individuals with intellectual disabilities will be executed.”
Georgian law has a curious origin story. It was enacted in 1988 and was the first in the nation to ban the execution of intellectually disabled people, before the Atkins Ordinance at 14 years. But it was drafted urgently.
“I dropped the ball,” Jack Martin, one of the drafters of the provision, told the Georgia House of Representatives in 2013. a key phrase in the wrong place.
“It was sloppy drawing, pure and simple,” said Mr Martin. “I don’t think anyone intended that.”
Nearly every other state requires defendants to prove they are intellectually disabled by just a preponderance of the evidence — that is, by showing that it is more likely than not.
The difference in the two standard cases, lawyers for the American Civil Liberties Union, which represents Mr. Young, told the Supreme Court in a recent petition asking the judges to hear his case.
“In the states that adopt a standard where evidence predominates, about a third of those who claim to be intellectually disabled succeed in invoking the eighth amendment protections,” they wrote. “In Georgia, not a single person convicted of intentional murder has prevailed in the trial to demonstrate that he or she has an intellectual disability.”
When we compare Georgia’s approach to that of other states, it only begins to suggest how unusual the law is, Mr. Young’s attorneys told the U.S. Supreme Court.
“As far as the petitioner can ascertain,” they wrote, “there are no other circumstances in which a person claiming a violation of their constitutional rights must demonstrate beyond reasonable doubt the underlying facts. Georgia stands alone in all constitutional law.”
Judge Charles J. Bethel, who disagreed with the Georgia Supreme Court decision to uphold state law, said simple logic showed that the law, in the words of the U.S. Supreme Court, created “an unacceptable risk” that some intellectually disabled people would be executed.
In his unanimous opinion, Judge Nahmias, who served as clerk to Judge Antonin Scalia and is now chief justice of the Georgia Supreme Court, acknowledged that the question in the case was narrow and that the reasoning in U.S. Supreme Court precedents “certainly casts doubt on the uniquely high standard of proof of this state.”
Judge Nahmias added another consideration, one that was apparently 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 it is likely that if the United States Supreme Court, as it currently exists, is asked to decide whether Georgia’s beyond reasonable doubt standard of evidence of intellectual disability conflicts with the Eighth Amendment, a majority of judges would not renew possession of the decisions in 2014 and 2017 to remove the statute of our state, despite the reasoning of the majority views in those two cases.