No. 19-697
IN THE
__________
JAMES DWIGHT PAVATT,
Petitioner,
v.
TOMMY SHARP, INTERIM WARDEN,
OKLAHOMA STATE PENITENTIARY,
Respondent.
__________
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Tenth Circuit
__________
BRIEF OF MEMBERS OF THE OKLAHOMA
DEATH PENALTY REVIEW COMMISSION AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
TEJINDER SINGH
Counsel of Record
CHARLES H. DAVIS
ERICA OLESZCZUK EVANS
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
tsingh@goldsteinrussell.com

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii 
INTEREST OF AMICI CURIAE ............................... 1 
SUMMARY OF ARGUMENT .................................... 3 
ARGUMENT ............................................................... 4 
I.  IT WOULD BE MANIFESTLY UNJUST FOR THIS
COURT TO PERMIT PETITIONER’S
UNCONSTITUTIONAL EXECUTION ............................ 4 
II.  OKLAHOMA’S CONSTRUCTION OF ITS
“ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL”
AGGRAVATOR CONTRAVENES THIS COURT’S
PRECEDENTS AND UNDERMINES UNIFORMITY IN
THE LAW OF CAPITAL PUNISHMENT ........................ 6 
III.THIS COURT SHOULD ADDRESS OKLAHOMA’S
BROAD CONSTRUCTION OF THE STATUTORY
AGGRAVATOR ........................................................ 11 
CONCLUSION ......................................................... 12 

 ii
TABLE OF AUTHORITIES
Cases 
Atkins v. Virginia,
536 U.S. 304 (2002) .................................................. 6
Cheney v. State,
909 P.2d 74 (Okla. Crim. App. 1995) ....................... 8
Godfrey v. Georgia,
446 U.S. 420 (1980) ........................................ passim
Gregg v. Georgia,
428 U.S. 153 (1976) .................................................. 6
Kennedy v. Louisiana,
554 U.S. 407 (2008) ................................................ 11
Maynard v. Cartwright,
486 U.S. 356 (1988) ........................................ passim
Medlock v. Ward,
200 F.3d 1314 (10th Cir. 2000) ................................ 9
Romano v. Gibson,
239 F.3d 1156 (10th Cir. 2001) ................................ 8
Roper v. Simmons,
543 U.S. 551 (2005) .................................................. 6
Stouffer v. State,
742 P.2d 562 (Okla. Crim. App. 1987) ..................... 8
Thomas v. Gibson,
218 F.3d 1213 (10th Cir. 2000) ................................ 8
Tuilaepa v. California,
512 U.S. 967 (1994) ................................................ 11
Zant v. Stephens,
462 U.S. 862 (1983) .................................................. 7

 iii
Constitutional Provisions 
U.S. Const. amend VIII ....................................... 2, 3, 5
Rules 
Sup. Ct. R. 37 ............................................................... 1
Other Authorities 
The Report of the Oklahoma Death Penalty
Review Commission (2017),
https://archive.constitutionproject.org/
wp-content/uploads/2017/05/OKDPRC_
Final.pdf ....................................................... 2, 11, 12

 1
INTEREST OF AMICI CURIAE *
Amici curiae are members of the Oklahoma Death
Penalty Review Commission, a diverse group of Oklahomans who studied the death penalty in Oklahoma
after a grand jury identified serious flaws with the
State’s administration of capital punishment. They
are:

*



Brad Henry, the 26th Governor of Oklahoma
and Of Counsel at Spencer Fane LLP;



Andy Lester, Partner at Spencer Fane LLP;



Robert H. Alexander, Jr., of The Law Office of
Robert H. Alexander, Jr., p.c.;



Howard Barnett, Jr., President of Oklahoma
State University-Tulsa;



Andrew M. Coats; Dean Emeritus and Arch B &
Joanne Gilbert Professor of Law at University
of Oklahoma College of Law;



Valerie Couch; Dean Emeritus and Norman &
Edem Professor of Law at Oklahoma City University School of Law, former magistrate judge
in the Western District of Oklahoma;



Kris Steele, former speaker of the Oklahoma
House of Representatives and Executive Director of The Education and Employment Ministry;

Pursuant to Supreme Court Rule 37, counsel for amici represents that they authored this brief in its entirety and that none
of the parties or their counsel, nor any other person or entity other
than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties were timely notified of amici’s intention to file this brief, and
all parties consented.

 2


Gena Timberman, Director of the Native American Cultural & Educational Authority.

In March 2017, after more than a year of study,
the Commission published its report on the death penalty in Oklahoma. The report is a detailed 272-page
document making evidence-based observations and
recommendations, including a unanimous recommendation that the State’s moratorium on the death penalty be extended indefinitely due to grave concerns
about the administration of capital punishment in Oklahoma. See The Report of the Oklahoma Death Penalty Review Commission vii (2017), https://archive.constitutionproject.org/wp-content/uploads/2017/05/
OKDPRC_Final.pdf (Commission Report).
Among the issues the Commission considered
were whether the death penalty was truly being applied only to the worst offenders. See Commission Report at vii, 141. The Commission thus evaluated the
State’s list of aggravating circumstances, including the
“heinous, atrocious, or cruel” factor at issue here, and
noted how important it was for courts in Oklahoma to
limit the requirement to “torture or serious physical
abuse,” as the Oklahoma Court of Criminal Appeals
(OCCA) did after this Court’s decision in Maynard v.
Cartwright, 486 U.S. 356, 364 (1988), which held Oklahoma’s statute was too vague to withstand Eighth
Amendment scrutiny without a limiting construction.
See Commission Report at 152.
As the petition makes clear, the OCCA has now
adopted a broad interpretation of the “heinous, atrocious, or cruel” aggravator, and its application in this
case illustrates how far Oklahoma’s courts have
strayed from the original narrowing construction. By
holding that the aggravator could be satisfied any time

 3
a victim does not die instantaneously, the OCCA construed the statute to apply in the vast majority of murders—and opened the door to arbitrariness by basing
capital punishment determinations on chance events.
Amici believe that the Tenth Circuit’s panel decision correctly found the application of this aggravating
circumstance unconstitutional as-applied to petitioner, and that the Tenth Circuit’s en banc decision
upholding petitioner’s death sentence warrants reversal—either summarily as proposed in the first question presented, or after plenary review as proposed in
the second question.
SUMMARY OF ARGUMENT
First, the Court should grant certiorari to ensure
that an unconstitutional execution does not occur. A
panel of the Tenth Circuit held that petitioner’s death
sentence violated the Eighth Amendment, and the en
banc decision did not question the merits analysis, but
instead vacated it based on a procedural default argument that was explicitly waived by the State. Absent
this Court’s intervention, petitioner will be executed
based on the application of a law that has been deemed
unconstitutional by the highest federal court to consider it. That result is flatly inconsistent with basic
principles of justice, and certiorari is warranted to prevent that outcome alone.
Second, the Eighth Amendment question warrants this Court’s review. For decades, this Court’s
precedents have required statutory aggravators to be
specific, and to distinguish in a principled way between offenders who deserve the death penalty and
those that do not. Oklahoma’s interpretation of the “especially heinous, atrocious, or cruel” aggravator, which

 4
allows an execution any time the victim does not die
instantaneously, is contrary to those precedents.
Oklahoma’s position also undermines uniformity
in the law on multiple levels. As the petition makes
clear, the application of this and similar aggravators
implicates a split among State courts of last resort and
federal courts of appeals. But more fundamentally,
Oklahoma’s interpretation would allow factually indistinguishable cases to be decided differently—when life
and death are on the line. This Court should grant certiorari to ensure that the States, and juries within
those States, have clear guidance about how the death
penalty works.
Finally, it is important to address this issue in Oklahoma, and to address it now. As the Commission’s
report establishes, the administration of the death
penalty in that State raises grave concerns. The
State’s interpretation of the “especially heinous, atrocious, or cruel” aggravator is a significant cause for
concern, and correcting the State courts’ error is important to all of the people of Oklahoma, including accused offenders, victims and their families, and the judicial system.
ARGUMENT
I. IT WOULD BE MANIFESTLY UNJUST FOR
THIS COURT TO PERMIT PETITIONER’S
UNCONSTITUTIONAL EXECUTION.
It would be alarming for this Court to permit the
State to execute petitioner without further review after a panel of federal judges found his sentence unconstitutional. The last word on the merits in this case
came from the panel, which held unequivocally that

 5
“the OCCA no longer construes ‘conscious physical suffering’ so that it distinguishes in a principled way between crimes deserving death and the many cases in
which the death penalty is not imposed.” Pet. App.
102a. Recognizing that this Court’s precedents in
Maynard v. Cartwright, 486 U.S. 356 (1988), and Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion),
demand more, the panel held that petitioner’s sentence violates the Eighth Amendment. Pet. App.
101a-02a. The en banc court did not revisit that determination—and so even though the panel opinion has
been vacated, it casts grave doubt on the State’s decision to seek death here. That is especially true here
because the en banc court’s procedural holding is
clearly erroneous, and rests on an argument that the
State explicitly waived.
This Court is the pinnacle of our system of justice,
and its actions send important signals to courts, governments, and the people about the meaning of justice
in America. Those signals are amplified in capital
cases because the stakes are so high. If this Court denies review in this case, it will send the disturbing
message that the Court is willing to allow States to execute citizens based on laws that have been deemed
cruel and unusual by the highest courts to consider
them. That outcome would be tragic—not only for petitioner, but for our system of justice as a whole. The
Court should grant certiorari to stave it off.

 6
OKLAHOMA’S CONSTRUCTION OF ITS
“ESPECIALLY HEINOUS, ATROCIOUS, OR
CRUEL” AGGRAVATOR CONTRAVENES
THIS COURT’S PRECEDENTS AND
UNDERMINES UNIFORMITY IN THE LAW
OF CAPITAL PUNISHMENT.
This Court’s precedents stress that “[c]apital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and
whose extreme culpability makes them the most deserving of execution.” Roper v. Simmons, 543 U.S. 551,
568 (2005) (quotation marks omitted). Committing
murder is not enough to warrant a death sentence;
there must be more. See Atkins v. Virginia, 536 U.S.
304, 319 (2002); Godfrey, 446 U.S. at 433 (plurality
opinion). Loose eligibility criteria create an unacceptable risk that the death penalty will arbitrarily be imposed on some offenders, but not others who committed similar crimes. Indeed, there is a high probability
that a process without sufficient principled guidance
would become infected with bias that has nothing to do
with an offender’s culpability.
II.

To prevent such injustice, and the constitutional
consequences that would follow, it is essential that a
State provide clear and principled guidance to sentencing juries. See Gregg v. Georgia, 428 U.S. 153, 192
(1976) (opinion of Stewart, J.). Most States that still
apply the death penalty use aggravating factors to narrow the scope of eligible offenses. But in order to perform their constitutional function, aggravators must
themselves provide adequate and principled guidance
to the jury, and must “reasonably justify the imposi-

 7
tion of a more severe sentence on the defendant compared to others found guilty of murder.” See Zant v.
Stephens, 462 U.S. 862, 877 (1983).
Thus, in Godfrey, this Court struck down the application of a statutory aggravating factor for murders
that were “outrageously or wantonly vile, horrible and
inhuman” because it determined that “[t]here is nothing in these few words, standing alone, that implies
any inherent restraint on the arbitrary and capricious
infliction of the death sentence,” and because the application of the aggravator in that case provided “no
principled way to distinguish this case, in which the
death penalty was imposed, from the many cases in
which it was not.” 446 U.S. at 428, 433 (plurality opinion).
In Maynard, this Court applied Godfrey to strike
down the very statutory aggravator at issue in this
case: Oklahoma’s “especially heinous, atrocious, or
cruel” aggravator. The Court explained that “the language of the Oklahoma aggravating circumstance at
issue—‘especially heinous, atrocious, or cruel’—gave
no more guidance than the ‘outrageously or wantonly
vile, horrible or inhuman’ language that the jury returned in its verdict in Godfrey,” and was constitutionally deficient for the same reason: “an ordinary person
could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous,’” and
the statute accordingly did not cabin the jury’s sentencing discretion in any principled way. 486 U.S. at
363-64.
The Court also rejected the argument that a statutory aggravating circumstance is “unconstitutionally
vague only if there are no circumstances that could be
said with reasonable certainty to fall within reach of

 8
the language at issue.” Maynard, 486 U.S. at 361. Instead, the Court demanded greater certainty, requiring aggravating circumstances that “channel[] and
limit[] . . . the sentencer’s discretion in imposing the
death penalty [a]s a fundamental constitutional requirement for sufficiently minimizing the risk of
wholly arbitrary and capricious action.” Id. at 362.
The Court recognized, however, that while the
case had been pending, the OCCA had adopted a narrowing construction of the aggravator, holding that it
applied only “to those murders in which torture or serious physical abuse is present.” Maynard, 486 U.S. at
365 (citing Stouffer v. State, 742 P.2d 562 (Okla. Crim.
App. 1987)). The Court acknowledged lower court
cases upholding similar constructions elsewhere, and
remanded for the Oklahoma courts to consider the issue in the first instance.
As of 1995, Oklahoma courts held that in order to
be “especially heinous, atrocious or cruel,” a murder
must have been “preceded by torture or serious physical abuse, which may include the infliction of either
great physical anguish or extreme mental cruelty.”
Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App.
1995). The court explained that in order to constitute
mental cruelty, torture “must be the result of intentional acts by the defendant. The torture must produce
mental anguish in addition to that which of necessity
accompanies the underlying killing.” Ibid.
By 2001, the Oklahoma courts had “begun to blur
the common understanding of the requisite torture
and conscious serious physical suffering, more and
more often finding the existence of these elements in
almost every murder.” Romano v. Gibson, 239 F.3d
1156, 1176 (10th Cir. 2001); see also Thomas v. Gibson,

 9
218 F.3d 1213, 1228 n.17 (10th Cir. 2000) (noting that
application of the aggravator when the only evidence
of torture was that the victim suffered multiple injuries raised grave constitutional questions); Medlock v.
Ward, 200 F.3d 1314, 1324 (10th Cir. 2000) (Lucero, J.,
concurring) (arguing that it would be unconstitutional
to find the aggravator met “based merely on the brief
period of conscious suffering necessarily present in virtually all murders”).
Oklahoma’s permissive approach to this aggravator reached its nadir in this case. As recounted in the
petition (at 6), petitioner allegedly shot the victim
twice. The victim, however, did not die “instantaneously.” Ibid. (citation and alteration omitted). Instead,
he survived for an unknown amount of time; perhaps
up to five minutes. There was no evidence of any intent
to torture or prolong the victim’s death, and the victim’s suffering upon being shot did not appear to be
uniquely painful or debased. Nonetheless, a jury found
that the State had established the aggravating circumstance on these facts, and the OCCA agreed, holding
that it was enough that the victim had not died instantaneously. At this point in time, all parties agree that
the State wants the ability to use the “especially heinous, atrocious, or cruel” aggravator whenever death
is not instantaneous.
By acceding to that position, the OCCA departed
from an acceptable narrowing construction. See Pet.
App. 373a. As the en banc dissent recognized, under
the OCCA’s interpretation, “conscious physical suffering” would simply be “the natural consequence of being
murdered” except in rare circumstances. Id. at 60a; see
also id. at 61a (“In other words, the very act of commit-

 10
ting the murder makes one eligible for the death penalty unless the victim was rendered unconscious immediately upon receiving the fatal blow.”). This matters because a broad interpretation of the aggravator
invites arbitrariness. A defendant who avoids this aggravator because the victim dies immediately upon being shot receives a “sharpshooter bonus,” which makes
no sense because the quality of a shooter’s aim has
nothing to do with his culpability. Id. at 62a. In other
situations, a victim might die instantaneously purely
by luck—but “luck” is simply another way of saying
that the aggravating circumstance is “wholly arbitrary
and capricious.” Godfrey, 446 U.S. at 427 (plurality
opinion) (citation omitted). Accordingly, the OCCA’s
construction provides “no principled way to distinguish” the few cases in which the death penalty will be
imposed “from the many cases in which it was not” imposed. Id. at 433.
The OCCA’s decision also necessarily undermines
uniformity in the law of capital punishment. As petitioner explains, there is a split among States and circuits over the application of this and similar aggravators. Pet. 28-31. More pointedly, Oklahoma’s rule itself
promotes disuniformity in capital sentencing. It opens
the door to arbitrary and capricious determinations
about when to impose the death penalty, making it
highly likely that factually indistinguishable cases
will be decided differently. See Pet. 32-33. Similarly,
identical crimes in different States with the same aggravating circumstance will result in differential application of capital punishment. Pet. 28-30. When statutory aggravators fail to provide the necessary guidance, juries may begin to sentence defendants to death

 11
for reasons entirely divorced from the crimes committed—including racial bias, socioeconomic bias, and
bias toward individuals with mental illness.
That disuniformity and potential for bias is contrary to this Court’s “controlling objective” in cases
about whether eligibility factors for capital punishment are unconstitutionally vague, which is to ensure
consistency. Tuilaepa v. California, 512 U.S. 967, 973
(1994). This Court spent decades “articulating limiting
factors that channel the jury’s discretion to avoid the
death penalty’s arbitrary imposition in the case of capital murder.” Kennedy v. Louisiana, 554 U.S. 407, 440
(2008). But it has been too long since Godfrey and
Maynard, and at least some States seem to have reacted to loosening oversight from this Court by expanding the scope of aggravating circumstances, culminating in the OCCA’s unconstitutional view that
any intentional killing that does not render the victim
immediately dead or unconscious is eligible for capital
punishment. This Court should grant certiorari to restore uniformity in the law and provide necessary
guidance to the States.
III.

THIS COURT SHOULD ADDRESS
OKLAHOMA’S BROAD CONSTRUCTION OF
THE STATUTORY AGGRAVATOR.
Finally, it is particularly important to address this
issue in Oklahoma, and to address it now. As the Commission’s Report observed, “Oklahoma has the highest
execution rate per capita of any state in the modern
era of capital punishment.” Commission Report at 7.
Moreover, although this Court “has emphasized that
the death penalty should be applied only to ‘the worst
of the worst,’” a “review of the evidence demonstrates

 12
that the death penalty” in Oklahoma has not been imposed “fairly, consistently, and humanely, as required
by the federal and state constitutions. These shortcomings have severe consequences for the accused and
their families, for victims and their families, and for
all citizens of Oklahoma.” Id. at vii.
In other words, Oklahoma currently lacks important safeguards to ensure that the death penalty is
implemented in a manner consistent with this Court’s
precedents and the requirements of the Constitution—
and it needs federal guidance to remedy that issue.
This case is a perfect place to intervene, because this
specific aggravator “is a commonplace in Oklahoma
death-penalty cases.” Pet. App. 68a.
CONCLUSION
This Court should grant the petition for writ of
certiorari.
Respectfully submitted,
TEJINDER SINGH
Counsel of Record
CHARLES H. DAVIS
ERICA OLESZCZUK EVANS
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Ave.
Suite 850
Bethesda, MD 20814
(202) 362-0636
tsingh@goldsteinrussell.com
January 2, 2020