Former Solicitors General, Prosecutors, and Judges File Supreme Court Briefs in Support of Case Protecting People with Disabilities from Death Penalty

WASHINGTON — Some of the nation’s most prominent former prosecutors, judges, and solicitor generals from across the ideological spectrum have asked the Supreme Court to review a controversial Georgia procedure that requires defendants to prove they have intellectual disability “beyond a reasonable doubt” in order to be constitutionally protected from the death penalty. Georgia is the only state in the country to impose such a demanding burden on defendants.

Among those asking the Supreme Court to review the case are former Solicitors General Charles Fried, Seth Waxman, and Don Verrilli. In addition, former prosecutors in some of the nation’s most notorious crimes, including the first World Trade Center bombing, the Oklahoma City bombing, and Ted Kaczynski, known as the Unabomber, have submitted a brief requesting the Supreme Court to declare the Georgia law unconstitutional.

Among the briefs filed are:

• A brief on behalf of Charles Fried, Solicitor General under President Reagan, and Seth Waxman, Solicitor General under President Clinton, filed by Orrick.
• A brief on behalf of national disability rights organizations, filed by Don Verrilli, Solicitor General under President Obama, and Munger Tolles & Olson.
• A brief on behalf of prominent former prosecutors and judges, including: Pat Fitzgerald, who prosecuted the first World Trade Center bombing case; Robert Cleary, who prosecuted Ted Kaczynski; Beth Wilkinson, who prosecuted the Oklahoma City bombers; Don Ayer, Deputy Attorney General under President George H.W. Bush, and Deputy Solicitor General under Reagan; Larry Thompson, Deputy Attorney General under President George W. Bush; and retired Supreme Court justices from Georgia, Florida, and Texas, three states whose procedures for determining intellectual disability have been controversial if not already constitutionally condemned, filed by Cooley.
• A brief on behalf of the Rutherford Institute and Conservatives Concerned About the Death Penalty, filed by former New York Solicitor General Caitlin Halligan and Selendy & Gay.

The prosecutors’ brief includes testimony from a Georgia legislative hearing showing that the Georgia legislature adopted the “beyond a reasonable doubt” standard by mistake — it was a drafting error. Yet Georgia has been defending it and the state Supreme Court has held it constitutional. The brief includes an appendix with a transcript from a hearing where the person who drafted the law admits it was a mistake.

Brian Stull, ACLU attorney with its Capital Punishment Project, said:
“These fillings represent a truly remarkable line-up of prominent voices from across the ideological spectrum. Some have prosecuted major death penalty cases. They don’t all agree about the death penalty. But they all agree that it’s unconstitutional to require a person with intellectual disability to prove that fact ‘beyond a reasonable doubt.’”

The case is on behalf of Rodney Young, a man incarcerated on Georgia’s death row with an intellectual disability. The Supreme Court has ruled that executing persons with intellectual disability violates their Eighth Amendment rights to be free from cruel and unusual punishment. The “beyond a reasonable doubt” standard of proof is the highest standard in our legal system, and Mr. Young’s jury decided that he had failed to surmount it, and sentenced him to death.

The Georgia law under attack in the ACLU’s petition clashes with the law of every other capital punishment state, all but two of which require proof of intellectual disability by a mere burden of more likely than not (the remaining two require clear and convincing proof). No defendant convicted of intentional murder in Georgia has ever proven to a jury that they are intellectually disabled under its “beyond a reasonable doubt” standard.

Georgia’s imposition of this standard, usually reserved for the burden the government must satisfy to obtain a conviction, is not just an outlier when it comes to the death penalty. Nowhere else in all of constitutional law does a state require an individual asserting any constitutional right to prove their factual entitlement to the right by such a severe burden.