Update on "evolving standards of decency" issue at SCOTUS

Here's the latest on the litigation related to the "evolving standards of decency" at the U.S. Supreme Court.

As TFDP previously covered, a group of Attorneys General—including Florida Attorney General Ashley Moody—joined an amicus brief in Grants Pass v. Johnson urging the U.S. Supreme Court to eliminate the “evolving standards of decency” standard used to review Eighth Amendment violations in death penalty cases.

The post on the brief in support of cert on this issue is available below:

While the merits of the underlying case do not involve the death penalty, the amicus certainly made the connection to the death penalty clear. As TFDP also covered, the U.S. Supreme Court granted cert in Grants Pass and set oral argument for April 22, 2024.

On March 1, the amicus filed their merits brief in Grants Pass.

The arguments presented in the brief do not directly address the “evolving standards of decency” as the original brief supporting cert did.

In fact, the term “evolving standards of decency” does not appear in the brief at all. Instead, the brief argues that policing homelessness should be left to the states, which can adequately address their “evolving communities.”

The full briefs are available on the docket on the U.S. Supreme Court’s website.

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Hamm v. Smith

The same amicus brief (with most of the same amicus, including AG Moody) from Grants Pass was also filed in another case before the U.S. Supreme Court: Hamm v. Smith.

Joseph Smith is on death row in Alabama. In 2023, a panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s vacatur of his sentence of death on the ground that Smith is intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2003). The State filed a petition for cert with SCOTUS.

The petition has been distributed for conference several times, but no decision has been issued yet.