Supreme Court, U.S. FILED 16?8921 APR272017 N0 16- OFFICE OF THE CLERK a? IN THE ?upreme Qtnurt at the Witch states KENNETH WILLIAMS, P9 tjtjoner, V. STATE OF ARKANSAS, ReSponden t. ON PETITION FOR A WRIT OF CERTIORARI TO THE ARKANSAS SUPREME COURT MOTION FOR LEAVE TO FILE AND BRIEF OF THE FAIR PUNISHMENT PROJECT AMICI IN SUPPORT OF PETITIONER RONALD JESSICA BRAND ROBERT SMITH FAIR PUNISHMENT PROJECT HARVARD LAW SCHOOL 1563 MASSACHUSETTS AVE. Cambridge, MA 02138 (617) 496-2054 rsullivan@law.harvard.edu Counsel of Record Dated: April 27, 2017 WILSON-EPES PRINTING (202) 789-0096 WASHINGTON, D. C. 20002 MOTION 0F AMICUS CURIAE FOR LEAVE TO FILE BRIEF IN SUPPORT OF PETITIONER Amicus curiae Fair Punishment Project, respectfully moves for leave of Court to ?le the accompanying brief under Supreme Court Rule 37 Counsel for petitioner has consented to the ?ling of this brief and written consent has been ?led with the Clerk of the Court; counsel for respondent takes no position, but did not provide consent. The Fair Punishment Project (FPP) is a joint project of Harvard Law School?s Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute. mission is to address the ways in which our laws and criminal justice system contribute to excessive punishment. FPP has conducted original research into how the death penalty functions in practice, including an extensive analysis of the records of the eight men that Arkansas has scheduled for execution this month. Our research, both in Arkansas and generally, establishes that the death penalty is not a punishment reserved for the most culpable peeple, but instead is routinely imposed upon people with severe intellectual and mental impairmentsm functional de?cits that rival or outpace juvenile status and intellectual disability in their detrimental effect on a person?s reasoning and judgment. Kenneth Williams?s case illustrates this problem. TABLE OF AUTHORITIES CASES: Atkins V. mrgmia 536 US. 304 (2002Norris, 423 F.3d 868 (8th Cir. 2005) 14 Elmore V. Holbrook, 137 S. Ct. 3 (2016) 17 Gregg v. Georgia, 428 US. 153 (1976) 3, 17 H311 V. Florida, 134 1986 (2014) 3, 6, 7 Johnson V. State, 27 405 (Ark. 2000) 13 Jones V. Norris, N0. 5:00?cv?401 (E.D. Ark. Sept. 14, 2005) 10-11 Jones V. Norris, 5:00-cv-401 (E.D. Ark. Oct. 4, 2005) 10 Jones V. Norris, 5:00-cv-401 (E.D. Ark. Feb. 14, 2006) 11 Kennedy V. Lomsiane, 554 US. 407 (2008) 5, 17 ii V. Kemp, 481 U.S. 279 (1987) 18 McGeJIee V. Norrie, No. 5:03-cv-143 (E.D. Ark. Oct. 10, 2003) 13-14 McGelzee V. Norrie, 588 F.3d 11856 (8th Cir. 2009LJebmenn, 285 U.S. 262 (1932) 17 ObergefeIJ V. Hodges, 135 2584 (2015) 7 Reper V. Simmons, 543 U.S. 551 (2005) 2, 6, 18 Sesser V. Norris, 735 F.3d 833 (8th Cir. 2013) 11 State V. Agee, 364 P.3d 971 (Or. 2015) 11 United States V. Carolene Products, Inc, 304 U.S. 144 (1938) 18 Ward V. State, 455 303, N0. 35-cv-15-558 (Ark. 2015) 14 Weems V. United States, 217 U.S. 349 (1910) 5 mgg?zs V. Smith, 539 US. 510 (2003) 3, 9 Williams V. Hobbs, 562 US. 1097 (2010) 9 I?Villiams V. Norris, 2007 WL 1100417 (E.D. Ark. Apr. 11, 2007) 10 V. Norris, 576 F.3d 850 (8th Cir. 2009) 9 Williams V. State, No. CR06-511 (Ark. Cir. Ct. Apr. 21, 2011) 11 CONSTITUTION: US Const. amend. 3.931an RULES: Supreme Court Rule 37.2(a) 1 Supreme Court Rule 37.6 1 iv OTHER AUTHORITIES: Garvey, Aggie va am: And M'?ga $101: In Capital Cases: What Do Jurors T111th 98 COLUM. L. REV. 1538 (1998) 10 Charles Hamilton Houston Institute for Race Justice, Death Penalty 2015 Year End Report (2015) 6 Justice Anthony M. Kennedy, Remarks at the 9th Circuit Judicial Conference (July 15, 2015) 4, 18 Smith, Cull, Robinson, The Failure of . M'txgatjonf?, 65 HASTINGS L.J. 1221 (2014) 6, 16 Robert J. Smith, Forgetting Furman, 100 Iowa L. Rev. 1149 (2015) 16 Death Penalty Information Center, The Death Penalty in 2016: Year End Report (2016) 15 Fair Punishment Project, Too Broken To Fix: An In-Depth Look at America?s Outlier Death Penalty Counties (2016) 15 Part of Our Report Released Fair Punishment Proj. (Oct. 12, 2016) 1 6 INTEREST OF AMICI CURIAEI The Fair Punishment Project (FPP) is a joint project of Harvard Law School?s Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute. mission is to address the ways in which our laws and criminal justice system contribute to excessive punishment. INTRODUCTION After not using its execution chamber for over a decade, Arkansas scheduled eight executions over eleven days to occur this month. It has become clear from the litigation that ensued that each of the men scheduled for execution has (or had) a severe mental illness, an intellectual impairment, or experienced unspeakable childhood trauma. At least two have (or had) plausible claims of innocence, but were repeatedly denied access to testing to prove it. The Arkansas Supreme Court has thus far stopped the execution dates for four of the men: Stacey Johnson, because he has a colorable innocence claim and needs to conduct DNA testing; Bruce Ward, a paranoid schizophrenic, both because he might be legally insane and because the trial judge refused to provide him an independent mental health expert; Don Davis, an intellectually impaired?if not disabledmman to whom the court also refused an 1 Pursuant to Rule 37.6, amid certify that no counsel for a party authored this brief in whole or in part. No person or entity other than the amjcj curiae and their counsel made any monetary contribution to the preparation or submission of this brief. Pursuant to Rule Petitioner has consented to the filing of the brief of amid curiae and the letter of consent accompanies this brief. 1 independent mental health expert at trial; and Jason McGehee, a man who suffers from bipolar disorder and endured horri?c childhood abuse, because he received a clemency recommendation due to his young age at the time of the offense and because he demonstrated exemplary behavior during his nearly two decades in prison. Arkansas has executed three men, all of whom experienced unspeakable abuse and had signi?cant impairments never presented to a jury. Ledell Lee appeared to have Fetal Alcohol borderline intellectual ability, and a plausible but under- investigated innocence claim, but his con?icted counsel, drunk attorney, and mentally ill lawyer all failed to investigate this evidence. Jack Jones had bipolar disorder and a father who beat him and raped his sister. Marcel Williams had a mother who pimped him out to older women for sex starting when Marcel was a pre-teen. The jurors who sentenced these men to death never heard this evidence. Kenneth Williams is scheduled for execution tonight. Five IQ scores place him within the intellectual disability range, but no Court has ever considered whether he is categorically barred from the death penalty. Unless this Court intervenes, he will be executed tonight. These men were convicted of crimes warranting severe punishment. But taken together, these are not cases that inspire con?dence that the death penalty is limited, as the Eighth Amendment mandates, to those ?whose extreme culpability makes them ?the most deserving of execution.? Roper V. 811111110115, 543 US. 551, 548 (2005) (barring the death 2 penalty for juveniles) (quoting Atkins V. Emma, 536 U.S. 304, 819 (2002) (barring the death penalty for the intellectually disabled)). Quite the opposite. If, as this Court recently reiterated, ?i1npos[ing] the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being,? Hal] V. Florida, 134 1986, 1992 (2014), then the principle of equal dignity also bars Arkansas from executing Kenneth Williams, who remains under warrant of execution. These eight cases situate Arkansas as a microcosm of what remains of the death penalty in America. Of the executions nationwide within the past ?ve years, at least two-thirds involved people with signi?cant intellectual impairments or serious mental illness, people who endured unspeakably traumatic childhood abuse, or those who, at the time of the offense, were not old enough to legally purchase alcohol. The juries in many of these cases, like the juries in most of the eight Arkansas cases, never heard the men?s full stories because the trial lawyers failed to adequately investigate and present these crucial facts. See Wiggins V. Smith, 539 US. 510, 524- 25 (2003). Forty years ago, in Gregg V. Georgia, 428 US. 153 (1976), this Court ushered in the modern era of capital punishment on the hypothesis that the then newly created state statutes would ensure the rarity and fairness of the death penalty. Today, the death penalty has become increasingly obsolete?in a nation of 324 million people and approximately 15,000 homicides, juries nationwide returned only 29 death sentences last year. But as these Arkansas cases demonstrate, the premise that as the death penalty 3 becomes rarer it will also capture an increasingly culpable group of people has proven powerfully incorrect. Instead, the handful of people exposed to the death penalty today are not the worst of the worst, but the unluckiest of the unlucky: the people with the most crippling impairments and the worst lawyers. The time to end the charade is now. The Constitution positions this Court as the ultimate arbiter of whether Mr. Williams?s death sentence? and capital punishment generally?is unconstitutionally disproportionate. It also places upon this Court the burden to vigorously engage with the question. Justice Anthony Kennedy said recently that the Court?s decisions on controversial issues ?draw down on a capital of trust.? Justice Anthony M. Kennedy, Remarks at the 9th Circuit Judicial Conference (July 15, 2015). The opposite is true, too. A failure to intervene to af?rm and protect the most basic dignity interests of the most vulnerable and impaired citizens draws from the people?s ?reservoir of trust? and erodes the institutional and moral credibility of the Court itself. This Court should stay the execution, grant certiorari, and add to the brie?ng schedule the additional question of whether the death penalty violates the Eighth Amendment?s prohibition on cruel and unusual punishment. ARGUMENT I. THE DEATH PENALTY MUST BE RESERVED FOR PEOPLE WITH THE MOST EXTREME MORAL CULPABILITY. The Eighth Amendment ?reaf?rms the duty of the government to reSpect the dignity of all persons? through its prohibition against excessive punishment ?even [for] those convicted of heinous crimes.? A ?nding of penal excess is appropriate where no compelling evidence exists to suggest that the punishment meaningfully contributes to a legitimate penological purpose. Kennedy V. Louisiana, 554 US. 407, 420 (2008). This is so because the State ?suffers nothing and loses no power? if a less severe sanction? one of ?just, not tormenting severity??results in ?the purpose of [the] punishment [being] fulfilled.? Weems V. United States, 217 US. 349, 381 (1910). The constitutionality of capital punishment hinges predominantly on its retributive force beyond what a life without parole sentence could fulfill. Kennedy: 554 US. at 420. But there is a risk inherent in relying on retribution to justify a death sentence. The desire for retribution ?can contradict the law?s own ends? and, when the death penalty is involved, it ?risks [the law?s] own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.? Id. To protect against this grave risk, the Court limits death penalty eligibility to the people who commit the most aggravated homicides and whose ?extreme culpability makes them the most deserving of execution.? Id. (internal quotation omitted). To ensure that the government only enacts the most extreme punishment on the worst of the worst, this Court has carved out several categorical bars to execution. Roper, 543 US. at 548. ?Once the diminished culpability of juveniles is recognized,? this Court held, ?it is evident that the penological justi?cations for the death penalty apply to them with lesser force than to adults.? Id. at 571. And in Atkins and again in Hall this Court precluded the imposition of the death penalty on the intellectually disabled. However heinous the offense, this Court concluded that legitimate penological purpose is served by executing a person with intellectual disability.? Hal], 134 at 1992. impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.? Id. There is, however, not much daylight between the culpability of those with a serious mental illness such as paranoid schizophrenia, or a person with a traumatic brain injury, and those with intellectual disabilities or who are seventeen. And yet there is good reason to conclude that the typical person sentenced to death or executed in America suffers from such crippling impairments. See Smith, Cull, Robinson, The Fa?ure ofM'tzgatjonZ 65 HASTINGS L.J. 1221 (2014) (?nding evidence of serious intellectual or mental impairments in the case records of an overwhelming majority of the then 100 most recently executed people in America); Charles Hamilton Houston Institute for Race Justice, Death Penalty 2015 Year End Report (2015) Report.pdf) (?nding that ?of the 28 people executed [in 6 2015], 75% were mentally impaired or disabled, experienced extreme childhood trauma and abuse, or were of questionable guilt? and that frequently not just one impairment, such as a low IQ score, that defines these cases, but rather multiple forms of disability and impairment?). Just as those with an intellectual disability are ?categorically less culpable than the average criminal,? Hal], 134 at 2002, so too are those who suffer from a debilitating mental illness or a traumatic brain injury that undermines decision- making. There is no meaningful difference among the blameworthiness of these groups. And if executing one set of these people violates their ?inherent dignity as a human being,? then so too does executing the others. See Hal], 134 at 1992; Cf Obergefe? V. Hodges, 135 2584, 2608 (2015) (?They ask for equal dignity in the eyes of the law. The Constitution grants them that right?). II. ARKANSAS EXEMPLIFIES THE ENDEMIC INABILITY OF STATES TO LIMIT THE DEATH PENALTY TO PEOPLE WITH THE MOST EXTREME CULPABILITY. The men who Arkansas scheduled for execution this month show that the state has failed to condemn only those with the most extreme moral culpability. These men?s cases highlight two undeniable truths about America?s 40?year experiment with capital punishmentmit punishes the most vulnerable people who have also had the worst lawyers. Collectively, these men are among the nation?s most impaired and marginalized citizens. And the woefully de?cient lawyering that drips off of the appellate records and 7 court opinions in these cases reveals the intractable problem of inadequate investigation and presentation of mitigation evidence in capital cases. Such inadequate representation precludes juries from hearing why they should decline to impose the harshest form of punishment. Kenneth Williams is intellectually disabled. Five out of seven IQ tests administered place him in that range, with one test indicating an IQ of 65. State V. Williams, No. CR06-511 at 64 (Ark. Cir. Ct. Apr. 21, 2011). He has a history of adaptive de?cits which include learning disabilities and problems. He failed the ?rst and third grades, was in special education, and dropped out in the ninth. Id. at 69. Supporting this claim, his family has a history of intellectual disability. Trial Testimony of Mark D. Cunningham at 9-10, 14, 24. And three experts now agree that based on his test scores and adaptive de?cits, he is intellectually disabled. State V. Williams, No. CR06-511 at 69 (Ark. Cir. Ct. Apr. 21, 2011). But incredibly, no court has ever reviewed the claim that he is categorically ineligible for execution. Mr. Williams is impaired in other ways. He experienced ?signi?cant head injuries,? and may also have brain damage. In an expert evaluation, he exhibited mild stuttering, a mild tremor, attention and focus problems, ?de?ciencies of judgment and reasoning, problems with reading comprehension, problems with comprehending oral instructions and problems with mental ?exibility.? His brain, said one expert, ?is not working the way it should.? Trial Testimony of Mark D. Cunningham at 16. The extraordinary abuse Kenneth Williams experienced as a child provides further evidence that he falls into the category of society?s most impaired, and not the most culpable. See 539 US. at 535 (holding that defense counsel had an obligation to investigate and present evidence of severe abuse by the defendant?s alcoholic and absentee mother, as well as evidence of molestation and repeated sexual assault as a teenager). As a child, he moved among at least six different foster homes, some of which were ?rat and roach infested,? experienced ?extreme economic deprivation? with utilities regularly shut off, and watched his parents abuse various substances. His father held his mother at gunpoint for several days and regularly beat her. And Mr. Williams? father routinely whipped him. There also is evidence that he suffered sexual abuse as a teenager. Cunningham at 6, 26, 1820, 26, 28. Like Kenneth Williams?s case, the cases of the three men executed present a cacophony of searing trauma, mental impairments, and horrible lawyering. Marcel Wayne Williams, executed Monday, was no stranger to this Court? Williams V. Hobbs, 562 US. 1097 (2010) (Sotomayor, J., dissenting from the denial of certiorari). Mr. Williams?s mother beat him savagely, with belts, switches, boiling water, and extension cords. See Appendix I at 4, 22-23, 27-28; DEL/[rams V. Norris, 576 F.3d 850 (8th Cir. 2009) (No. By the time he was nine or ten, his mother started pimping him out to older friends in exchange for ?food stamps, for food, for a place to stay.? And he was violently gang-raped while in prison. Id. at 20-28. This type of trauma and abuse often convinces jurors to spare a defendant?s life. See Garvey, 9 Aggra vanon And M'trga tron In Capital Cases: What Do Jurors Think? 98 COLUM. L. REV. 1538 (1998). But the jury never heard this evidence of extraordinary sexual and physical abuse because his trial lawyers failed to uncover it. Indeed, his lawyer presented almost no evidence at the penalty phase of the trial despite conceding Mr. Williams?s guilt at the guilt phase. See Wj?rams V. Norris, 2007 WL 1100417, at *1 (ED. Ark. Apr. 11, 2007), 31?de part, rev?d 1'12 part, 576 F.3d 850 (8th Cir. 2009). Jack Jones, also executed Monday, suffered from bipolar disorder and a history of depression. As a child, he thought he saw ?bugs, ants and spiders? that would attack him. He believed the ?only way to be safe from [them] was to hold very still.? Sometimes, he would hang his head against the cupboards, rocking back and forth. As a teenager, a doctor recommended and family counseling, but the family did not follow this advice. See Declaration of David Freedman, M.S., at 9-16, on ?le with the Fair Punishment Project; Amended Petition for Writ of Habeas Corpus at 6, 9, Jones V. Norris, N0. 5:00-cv-401 (E.D. Ark. Sept. 14, 2005); Response to Amended Petition for Writ of Habeas Corpus at 6, Jones V. Norris, 5:00-cv-401 (E.D. Ark. Oct. 4, 2005). He tried to commit suicide in 1989 and again in 1991, when he jumped off a bridge. Only then did he receive attention. Months before the murder, he committed himself to the hOSpital, again reporting suicidal ideation. It is then that he finally received his bipolar diagnosis. See Freedman Declaration at 11-17. Jones was Victim of physical abuse by his father and sexual abuse by three strangers who raped 10 him. Id. But his jury never heard that evidence. His lawyers, who spent a mere $6,641.95 on his defense, which included the cost of plane tickets for the witnesses, lodging, and food, did not investigate or present any meaningful mitigation evidence, instead arguing primarily that he had an attention-de?cit disorder. Supplemental Response to Motion for Leave to File Second Amended Petition at 7, Jones V. Norris, No. 5:00-cv-401 (E.D. Ark. Feb. 14, 2006); Amended Petition for Writ of Habeas Corpus at 7, Jones V. Norms, No. 5:00-cv-401 (E.D. Ark. Sept. 14, 2005). Ledell Lee?s adjusted IQ score, obtained just days before his execution, was a 79, placing him in only the eighth percentile and inside Arkansas? range of intellectual disability. See ECF 166 at 23; Sasser V. Norris, 735 F.3d 833, 844 (8th Cir. 2013) (noting that ?[u]nder Arkansas law, mental retardation is not bounded by a ?xed upper IQ limit, nor is the ?rst prong a mechanical score requirement?); see also State V. Agee, 364 P.3d 971, 983, 989 (Or. 2015) (?nding that the defendant may have a claim of intellectual disability with an IQ score between 82 and 84 given his signi?cant adaptive de?cits and evidence of fetal alcohol Lee was in special education classes his entire life, consistently scored poorly on standardized testing, earned abysmal grades, and repeated both the seventh and eighth grades, before finally dropping out in the ninth grade. ECF No. 166 at 19-21; ECF No. 162. Lee also had exhibited ?[s]ignif1cantly subaverage? functioning on nearly every test performed, and there is evidence to suggest that he had brain damage on his right hemiSphere and frontal lobe. ECF No. 166 at 19-22. He also likely had Fetal Alcohol a diagnosis corroborated by his mother?s chronic 11 drinking while pregnant. ECF 166 at 22-23. This is compelling evidence that death was a disproportionate sentence for Mr. Lee. No jury?or court for that matter?ever heard any of this evidence. Mr. Lee?s trial attorneys unsuccessfully asked the court to remove them from his case due to a con?ict, and there is no evidence to suggest they ever investigated his case. Lee?s ?rst state post-conviction attorney was so intoxicated during the proceedings that the prosecutor asked for a drug test and the federal district judge could later discern his impairments by reading a cold transcript. ECF 166 at 13. His next state post-conviction attorneys conducted no mitigation investigation and presented essentially the same evidence as Mr. Lee?s drunk lawyer. And one of Mr. Lee?s two federal post- conviction attorneys suffered from a mental illness that eventually rendered him a threat to his clients. ECF 166 at 9. In legal proceedings that ended in an execution last week, Mr. Lee received representation that would make any judge, prosecutor, defendant, or court-watcher in misdemeanor court cringe. The cases of the four men originally scheduled for execution who eventually received stays demonstrate the same pattern of devastating impairments coupled with de?cient lawyering: Stacey Johnson. There is no evidence that anyone has ever conducted even the most minimal of investigation into Stacey Johnson?s life history. He does, however, have a strong claim of his innocence. Therapy records reveal that the decedent?s family members may have pressured the main witness in the case, a young child, into identifying Mr. Johnson as 12 the culprit. The trial judge kept this information from Mr. Johnson?s jury. See Johnson v. State, 27 405, 411 (Ark. 2000). The trial judge also excluded evidence that the decedent?s ex-boyfriend had a history of abusing her and biting breasts?relevant testimony given the presence of a bite mark on her breast when police arrived on the scene. Id. at 415. For years, Mr. Johnson requested DNA testing that was unavailable at the time of his trial. The Arkansas Supreme Court stayed his execution and granted the request to test the DNA so he could ?nally try to prove his innocence. Jason McGhee. The clemency board recently recommended clemency for Jason McGehee, who suffers from bipolar disorder, an illness that runs in his family. He has exhibited for most of his life, but never received treatment as a child because his mother believed he was just ?possessed by the Devil.? See Petition for Writ of Habeas Corpus at 34; McGeIJee V. Norris, No. (E.D. Ark. Oct. 10, 2003). He also experienced horri?c trauma as a child. Jason?s father killed two family dogs when Jason was young, slitting their throats with a knife. Later, he got another dog, Dusty, who he took with him everywhere, carrying it ?around . . . like he was a baby,? ?dress[ing] [it] up? in ?clothes,? including a ?jogging suit.? His constant companion, the dog even slept with him. Jason?s step-father killed the dog, kicking it to death with his pointy toed shoes while forcing Jason to watch. According to relatives, ?[t]hat was the turning point. Jason was never the same after that.? Jason?s mother?s cruelty also knew no bounds. She once forced him to live outside in a dog run because he missed curfew. See Petition for Writ of Habeas Corpus; McGebee, at 21-22, 31-33. Jason?s 13 trial lawyer uncovered very little of this evidence. V. Norris, 588 F.3d 1185, 1196 (8th Cir. 2009). Bruce Ward?s case follows the same pattern. A paranoid schizophrenic, Mr. Ward does not appear to understand he will be executed and instead thinks he will ?walk out of prison to great riches and public acclaim.? He receives ?revelations from God directly (voices), and through scripture.? He believes he is in prison because of demonic forces God has allowed to ?prepare him for a special mission as an evangelist,? and is certain that his dead father and resurrected dogs are in the prison. Complaint for Declaratory and Injunctive Relief at 7-16; Ward V. State, 455 303, N0. 35-cv-15-558 (Ark. 2015). None of this information was presented to a jury; indeed, Mr. Ward never even received an evaluation from an independent expert, a fact which formed one of the two bases for his eventual stay. Don Davis, like Ledell Lee and Kenneth Williams, might have intellectual disability. But as in Mr. Ward?s case, the trial judge denied funding for an independent expert to help the defense investigate Mr. Davis?s intellectual and mental health, forming the basis for his current stay of execution. Dar/1s V. Norris, 423 F.3d 868, 875 (8th Cir. 2005). He too has experienced ineffective lawyering -- by the time Mr. Davis?s lawyers raised the issue of his intellectual disability in a successive habeas petition, the Eighth Circuit found he had defaulted the claim. Id. at 879. These eight men are (or were) not among the ?worst of the worst.? Rather, their cases show, in breathtaking fashion, that the death penalty fails to 14 capture only those with the most extreme culpability. And the records reveal that they received their sentences not after trials (or even appeals) involving heightened procedures and well-litigated cases, but after losing the perverse lottery of lawyers, where the most impaired defendants receive the least help. While the Arkansas cases are devastating in the scope of their de?ciencies, they are not unique. With death sentences and executions at all-time or near all-time lows, it is now possible to survey the whole of America?s death penalty. What is left is rotten to the core. We routinely execute the severely mentally ill, the intellectually impaired, combat veterans who come back home with traumatic brain injuries and post-traumatic stress disorder, and those not old enough to legally purchase alcohol. See Death Penalty Information Center, The Death Penalty in 2016: Year End Report (2016) YrEnd.pdf) (concluding that ?at least 60% of the prisoners executed [in 2016] showed signi?cant evidence of mental illness, brain impairment, and/or low intellectual functioning?); Fair Punishment Project, Too Broken To Fix: An In-Depth Look at America?s Outlier Death Penalty Counties (2016) (available at released/) (Examining every case decided on direct appeal between 2006 and 2015 in the sixteen counties in America that return the most death sentences and ?nding that ??fty-six percent of cases involved defendants with signi?cant mental impairments or other forms of mitigation, such as the defendant?s young age. Forty percent of cases involved a 15 defendant who had an intellectual disability, brain damage, or severe mental illness?) Because inadequate defense lawyering pervades death penalty trials, as it does in the eight Arkansas cases, it is almost certainly true that what is known about the crippling impairments of those under sentence of death dramatically under- represents their frequency, degree, and kind. See Part IIofOurReportI-Eeleasea?, Fair Punishment Proj . (Oct. 12, 2016) counties-releasedb (?During the mitigation phase, the defense lawyer is supposed to present all of the evidence showing that the defendant?s life should be Spared?including testimony from mental health and other experts. This presentation can last several weeks if the lawyers prepare properly. [Yet,] In most of the [sixteen highest use] counties, the average mitigation presentation at the penalty phase of the trial lasted less than one and half days?); The Failure of M'tzgatjon? at 1254 (noting that ?a signi?cant number of [the 100] executed offenders [studied] did not present (or adequately present) the mitigation evidence found in their post-conviction claims at the trial level?); Robert J. Smith, Forgetting Furman, 100 Iowa L. Rev. 1149 (2015) (explaining that most mitigation is not uncovered until federal habeas, at which point the Court applies a strong presumption of ?nality and deference to the verdict). This failing alone is enough to call into question the constitutionality of the death penalty, because access to vigorous representation that allows a ?jury be able to fully and fairly evaluate ?the characteristics of the person who committed the crime?? is ?a bedrock premise on which our system of capital punishment 16 depends.? Elmore V. Holbrook, 137 3, 11 (2016) (Sotomayor, J., dissenting) (citing Gregg V. Georgia, 428 US. 153, 197 (1976) (joint opinion of Stewart, Powell, and Stevens, THIS COURT SHOULD END THE FAILED EXPERIMENT WITH CAPITAL PUNISHMENT. In Gregg V. Georgia, 428 US. 153 (1976), this Court provided a constitutional stamp of approval to capital punishment on the premise that newly drafted statutes would ensure that the death penalty be returned only in the most aggravated and least mitigated cases. Forty years later, there is no rational basis for concluding that this experiment has been a success. See Kennedy V. Louisiana, 554 US. 407, 436 (2008) (emphasizing that the Court?s attempt to regulate capital punishment through procedural rules ?has produced results not all-together satisfactory? and refusing to permit an expansion of the death penalty to non-homicide offenses because it would require ?experimentation in an area where a failed experiment would result in the execution of individuals undeserving of the death penalty?); New State Ice 00. V. Liebmann, 285 US. 262, 280 (1932) (?The principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense in the interest of experiments?). In response to a four-decades long failed experiment, the results of which plainly and frequently include the ?execution of individuals undeserving of the death penalty,? the obligation to end this punishment rests squarely and 17 unmistakably with this Court. The Constitution charges the Court with the duty to vigorously enforce its ?broad provisions [designed] to secure individual freedom and preserve human dignity.? Roper V. 313221320118, 543 US. 551, 578 (2005); Atkins V. Wgzma, 536 US. 304, 311-12 (2002) (?The basic concept underlying the Eighth Amendment is nothing less than the dignity of man?). The role of the judiciary is to engage with the overzealous exercise of government power, regardless of how controversial the matter might be, when the rights of the most vulnerable and voiceless people in our society are at risk. See United States V. Carolene Products, 1110., 304 US. 144, 153 n.4 (1938) (noting that ?prejudice against discrete and insular minorities . . . which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities . . . may call for a correspondingly more searching judicial inquiry?); McCleskey V. Kemp, 481 US. 279, 343 (1987) (Brennan, ., dissenting) (?Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society?s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social There is a sentiment that when this Court renders controversial decisions it ?draw[s] down on a capital of [public] trust.? Justice Anthony M. Kennedy, Remarks at the 9th Circuit Judicial Conference (July 15, 2015). Inaction, too, draws down from the ?reservoir of [public] trust.? 18 CONCLUSION Amjcj urge this Court to stay the execution, grant certiorari, and add to the brie?ng schedule the additional question of whether the death penalty violates the Eighth Amendment?s prohibition on cruel and unusual punishment. Respectfully submitted, RONALD JESSICA BRAND ROBERT SMITH FAIR PUNISHMENT PROJECT HARVARD LAW SCHOOL 1563 MASSACHUSETTS AVE. Cambridge, MA 02138 (617) 496-2054 rsullivan@law.harvard.edu Counsel ofRecord Dated: April 27, 2017 19