Court Filing
Electronically Filed 9/5/2024 2:48 PM Second Judicial District, Latah County Julie Fry, Clerk of the Court By: Tamzen Reeves, Deputy Clerk Anne Taylor Law, PLLC Anne C. Taylor, Attorney at Law Bar Number: 5836 PO Box 2347 Coeur d'Alene, Idaho 83816 Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, Interim Public Defender Kootenai County Public Defender's Office PO Box 9000 Coeur d'Alene, Idaho 83816 Phone: (208)446-1700 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661 Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney: Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH STATE OF IDAHO CASE NUMBER CR29-22-2805 Plaintiff, MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH V. PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF BRYAN C. KOHBERGER, DECENCY AND MEMORANDUM IN SUPPORT OF MOTION Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby submits the following Motion to Strike the State's Notice of Intent to Seek the Death Penalty on the Grounds of Contemporary Standards of Decency. More American's believe the death penalty MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 1 is applied unfairly than fairly. Gallup Poll 2023: https://deathpenaltyinfo.org/facts-andresearch / dpic-reports / dpic-year-end-reports / the-death-penalty-in-2023-year-end-report. SUMMARY OF ARGUMENT Idaho's legislative and judicial construction and application of capital punishment violates the prohibition against cruel and unusual punishment contained within Article I, Section 6 of the Idaho Constitution and the 8th and 14th Amendments to the United States Constitution. Punishment which does not comport with the evolving standards of a modern, civilized society is cruel and unusual. In recent years, a national consensus in opposition to the death penalty has begun to emerge. The lack of an active death penalty in the majority of states within the United States indicates that there has been an ideological shift and that the punishment now violates our contemporary standards of decency. The vast majority of modern, civilized society has already abolished capital punishment because the execution of human beings by governments is recognized to be a violation of the dignity and spirit of human beings. The institutional killing of civilian prisoners affronts the modern, civilized world. The United States has been routinely condemned by the international community for continuing to execute its own people. The United Nations Commission on Human Rights and most organized religions have called for a moratorium on executions with a view to completely abolishing the death penalty. Since Idaho continues to actively pursue and impose death as a sentence for criminal law violations, Idaho does not comport with the evolving standards of contemporary society. By way of example: Idaho recently halted it first lethal injection execution in 12 years when the corrections team was unable to set an intravenous line on Thomas Creech. https://deathpenaltyinfo.org/idaho- MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 2 halts-first-lethal-injection-execution-in-12-years-after-failure-to-establish-i - v-lines As the evolving standards of modern society reflect abhorrence to capital punishment, Idaho's continuing effort to execute its own citizens, including Mr. Kohberger, is not in comport with the evolving standards of a civilized, modern society. Rather, the State's efforts to have Mr. Kohberger executed violate his right to be free from cruel and unusual punishment as that right is guaranteed by the 8th and 14th Amendments to the United States Constitution and Article I, Sections 6 and 13 of the Idaho Constitution. ARGUMENT Article I, Section 6 of the Idaho Constitution and the 8th Amendment to the U.S. Constitution prohibit the infliction of cruel and unusual punishment by the States. Punishment is cruel and unusual if it is inflicted in an uncivilized and inhumane way. Furman v. Georgia, 408 U.S. 328, 268, 92 S. Ct. 2726, 2741 (1972) (Brennan, J., concurring); Trop v. Dulles, 356 U.S. 86, 99, 78 S. Ct. 590, 597 (1958). And, the legislature's power to punish must be “ exercised within the limits of civilized standards. ” Trop, 356 U.S. at 100, 78 S. Ct. at 598. The standards of a civilized society may be measured by evolving moral and legal standards as well as history. Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 28 (1976); Ford v. Wainwright, 477 U.S. 399, 405, 106 S. Ct. 2595, 2599 (1986); see also, Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972). A " claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘ Bloody Assizes ' or when the Bill of Rights was adopted, but rather by those that currently prevail. ” Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242 (2002). The Supreme Court has established a two-step process to evaluate a claim that a form of punishment violates contemporary standards of decency: MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 3 The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. These data give us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment.... Roper v. Simmons, 543 U.S. 551, 564, 125 S.Ct. 1183 (2005). When one looks at recent legislative enactments across the county, as well as states that do not provide for the death penalty by statute, and those states that have not imposed the death penalty recently; it is clear that a national consensus in opposition to the death penalty has emerged. The lack of an active death penalty in the majority of states indicates that there has been an ideological shift in this country and that the punishment violates our standards of decency. This standard is also reflected in the evolving standards of civilized society in the modern, civilized world. Unusual Application In the vast majority of the United States, a death penalty sentence or executions are rare events. And they are becoming increasingly rarer each year. In his dissenting opinion in Glossip v. Gross, 135 S.Ct. 2726, 2755, 192 L.Ed.2d 761 (2015), Justice Breyer noted that in 2014, only seven states carried out an execution. Id. at 2772. He also noted that “ in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual. ” Id. “ Between 1986 and 1999, 286 persons on average were sentenced to death each year. But, approximately 15 years ago, the numbers began to decline, and they have declined rapidly ever since. In 1999, 279 persons were sentenced to death. [In 2014], just 73 persons were sentenced to death. ” Glossip, 135 S.Ct. at 2772 (Breyer, dissenting) (internal citations omitted). MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 4 Last year, in 2023, there were twenty one (21) new death sentences, a small uptick from the twenty (20) the previous year which was among the lowest number since the death penalty was reinstated in 1976. Death Penalty Information Center (DPIC), The Death Penalty in 2023: https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-deathpenalty-in-2023-year-end-report. 2023 is the 9th consecutive year with fewer than 30 people executed (24) and fewer thatn 50 people sentenced to death (21). Id. " That trend, a significant decline in the last 15 years, also holds true with respect to the number of annual executions. In 1999, 98 people were executed. [In 2014], that number was only 35. " Glossip, 135 S.Ct. at 2772 (Breyer, dissenting) (internal citations omitted). Last year, in 2023, the number was twenty-four (24). Death Penalty Information Center (DPIC), The Death Penalty in 2023: Year End Report, available at https://deathpenaltyinfo.org/database/executions?year=2023 “ [T] he number of active death penalty States has fallen dramatically. ” Glossip, 135 S.Ct. at 2773 (Breyer, dissenting). “ In 1972, when the Court decided Furman, the death penalty was lawful in 41 States. Nine States had abolished it. As of today, 23 States have abolished the death penalty (along with the District of Columbia), although some did so prospectively only. In 11 other States that maintain the death penalty on the books, no execution has taken place for more than eight years: Arkansas (last execution 2005); California (2006); Colorado (1997); Kansas (no executions since the death penalty was reinstated in 1976); Montana (2006); Nevada (2006); New Hampshire (no executions since the death penalty was reinstated in 1976); North Carolina (2006); Oregon (1997); Pennsylvania (1999); and Wyoming (1992). ” Id. (internal citations omitted) (citing DPIC, Executions by State and Year, online at http://www.deathpenaltyinfo.org/viewsexecutions). “ Accordingly, 30 States have either formally abolished the death penalty or have not MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 5 conducted an execution in more than eight years. Of the 20 States that have conducted at least one execution in the past eight years, 9 have conducted fewer than five in that time, making an execution in those States a fairly rare event. ” Glossip, 135 S.Ct. at 2773 (Breyer, dissenting) (quoting BJS Prisoner Statistics (Delaware, Idaho, Indiana, Kentucky, Louisiana, South Dakota, Tennessee, Utah, Washington). Since Glossip, five additional states have abolished the death penalty- Delaware, Washington, New Hampshire, Colorado, and Virginia. See DPIC, Death Penalty by State, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited September 3, 2024). Six states have formally stopped executing inmates: Oregon, California, Pennsylvania, Arizona, Tennessee and Ohio. Id. Another eleven states have not executed anyone in at least ten years. Death Penalty Information Center (DPIC), The Death Penalty in 2022: Year End Report, available at https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-deathpenalty-in-2022-year-end-report.. In 2014, three States (Texas, Missouri, and Florida) accounted for 80% of the executions nationwide (28 of the 35). Glossip, 135 S.Ct. at 2773 (Breyer, dissenting) (citing DPIC, Number of Executions by State and Region Since 1976, online at http: //www.deathpenalty info.org/number-executions-state-and-region–1976.) In 2022, two states (Texas and Oklahoma) accounted carried out more than half executions. DPIC, 2022 Year End Report. " [I] f we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., three States, account for 80% of all executions. " Glossip, 135 S.Ct. at 2774 (Breyer, dissenting). “ If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. ” Id. MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 6 " It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole. " Id. And with each passing year, it becomes more unusual. State Changes In the past 10 years, five (5) state legislatures have abolished the death penalty: Virginia (2021), Colorado (2020), New Hampshire (2019), Maryland (2013), and Washington (2023). DPIC, States by State, online http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited September 3, 2024). In 2016, the Connecticut and Delaware Supreme Courts held that the Death Penalty was unconstitutional. DPIC, States With and Without the Death Penalty. In 2023, the Washington Supreme Court did as well. Id. Currently, ten states have pending legislation to abolish the death penalty including Arizona, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Carolina, Ohio, South Carolina, Texas. DPIC, Recent Legislative Activity, online at http://www.deathpenaltyinfo.org/recent-legislative-activity (last visited August 21, 2023). The direction of change is clear. In the past two decades, the only state without a death penalty that has passed legislation to reinstate it is Nebraska. DPIC, States With and Without the Death Penalty. When determining whether a punishment violates the evolving standards of decency, the Supreme Court has said that it “ ‘ is not so much the number of these States that is significant, but the consistency of the direction of change. ” Roper, 543 U.S. at 566, 125 S.Ct. 1183 (quoting Atkins, 536 U.S. at 315, 122 S.Ct. 2242) (finding significant that five States had abandoned the death penalty for juveniles, four legislatively and one judicially, since the Court's decision in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969 (1989)). The United States is consistently moving in the direction of abolition, demonstrating that the punishment violates our evolving standards of decency. MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 7 Public Opinion Public opinion in the United States is also shifting towards abolition. Last year's November Gallup polls show that 53% of the public support the death penalty for murderers, while Rasmussen found that less than half support the death penalty. This is the lowest approval rating in history DPIC, National Polls and Studies (2023) (available at https://deathpenaltyinfo.org/facts-and-research/public-opinion-polls/national-polls-and-studies) (last visited September 3, 2024). The Pew Research Center also has seen a decline in support for the death penalty. John Gramlich, 10 Facts about the Death Penalty in the U.S., Pew Research Center (July 19, 2021) (available at https://www.pewresearch.org/fact-tank/2021/07/19/10-factsabout-the-death-penalty-in-the-u - s /). “ In phone surveys conducted by Pew Research Center between 1996 and 2020, the share of U.S. adults who favor the death penalty fell from 78% to 52%, while the share of Americans expressing opposition rose from 18% to 44%. ” Id. International Community The Role of International Law in United States Law There is a growing recognition that international human rights norms in general, and the ICCPR in particular, should be applied to the United States. See Duarte-Acero, 208 F.3d at 1284; McKenzie v. Daye, 57 F.3d 1461, 1487 (9th Cir. 1995) (Norris, J., dissenting). The United States Supreme Court relied on international human rights law in Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 2484 (2003) to find that a Texas statute making it a crime for two persons of the same gender to engage in certain intimate sexual conduct was unconstitutional. The Court analyzed the development of international law and practice since the last time the Court addressed the same question in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986). Lawrence, 539 U.S. at 576, 123 S.Ct at 2482-83. The Court cited three decisions of the European Court, noted MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 8 that other nations “ have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct, ” and concluded that “ [t] he right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. " Id. at 576-77, 2483. The decisions of the European Court were the only judicial precedents cited by the Court that directly supported its holding. Id. In Lawrence, the Court went beyond our national borders and looked to the law of other countries in deciding issues of due process and basic fairness. Again, in finding an international consensus, the Court held that basic, fundamental due process rights can, in part, be defined by reference to fundamental values evidenced not only by those policies extant in the jurisdictions of the United States, but also by the policies and practices extant in the world: To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has not followed Bowers.... Other nations, too, have taken action consistent with [personal rights]. The right petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Lawrence, 539 U.S. at 576 (citations omitted). Justice Ruth Bader Ginsburg, in her remarks at the Bellwood Lecture at the University Of Idaho College Of Law, expanded on the notion that the United States should look beyond its own borders in resolving issues of fundamental fairness and due process. Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of A Comparative Perspective in Constitutional Adjudication, 40 Idaho L. Rev. 1 (2003). The point is that when this Court decides what basic fairness comprises due process and the evolving standards of decency in Idaho, it too can and should consider the process that is considered due and the standards of civilized society not only within the 50 states and the federal MOTION TO STRIKE STATE'S NOTICE OF INTENT TO SEEK DEATH PENALTY ON GROUNDS OF CONTEMPORARY STANDARDS OF DECENCY AND MEMORANDUM IN SUPPORT OF MOTION PAGE 9 government, but also in the modern, civilized world. Similarly, in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005), the Court looked to international law when deciding that it was impermissible under the Eighth Amendment to execute juveniles The Court surveyed international law and practice and concluded that the views of the world community provided confirmation that capital punishment is an unjust penalty for juvenile offenders. Roper, 543 U.S. at 575-78, 125 S.Ct. at 1198-1200. The Court stated: “ Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. ” Id. at 575, 1198. The Court referenced Article 37 of the United Nations Convention on the Rights of the Child and noted that it “ contains an express prohibition on capital punishment for crimes committed by juveniles under 18. ” Id. at 576, 1199 (citing United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448, 1468–1470). The Court also noted that " [p] arallel prohibitions are contained in other significant international covenants. " Id. (citing ICCPR, Art. 6 (5), 999 U.N.T.S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States su