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No. in the SUPREME COURT of the UNITED STATES NAPOLEON No. IN THE SUPREME COURT OF THE UNITED STATES NAPOLEON BEAZLEY, Petitioner v. GARY L. JOHNSON, Respondent On Petition for Writ of Certiorari To the Fifth Circuit Court of Appeals MOTION FOR STAY OF EXECUTION TO THE HONORABLE JUSTICES OF THE SUPREME COURT: Petitioner Napoleon Beazley, an indigent, respectfully moves this Court to stay his execution, presently scheduled to occur shortly after 6:00 P.M. on August 15, 2001. Under Barefoot v. Estelle, 463 U.S. 880, 895-896 (1983), a stay should be granted only if there is a "reasonable probability that four Members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari . .; there must be a significant possibility of reversal of the lower court's decision; and there must be a likelihood that irreparable harm will result if that decision is not stayed." The underlying decision is Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) (attached as Appendix A). Clearly, irreparable harm will result if the execution is not stayed. The petition for writ 1 of certiorari filed by Mr. Beazley on June 13, 2001, presents issues of nationwide, and indeed global, significance. Mr. Beazley asserts that the issues in the petition are so meritorious that it is likely that, following review, this Court will reverse the underlying decision of the Court of Appeals for the Fifth Circuit. Justice Antonin Scalia authored the lead plurality opinion for the most recent case in which this Court has considered the international ban on the execution of child offenders. Stanford v. Kentucky, 492 U.S. 361 (1989). This Court held in Stanford that the Eighth Amendment was not offended by the execution of persons who were 16 and 17 years old at the time of their offense. Justice Stevens and three other Justices dissented. Stanford, 492 U.S. at 382 (1989) (Brennan, J., joined by Marshall, Blackmun, and Stevens, J.J.). The dissenters found that "to take the life of a person as punishment for a crime committed when below the age of 18 is cruel and unusual and hence is prohibited by the Eighth Amendment." The Stanford decision was more than a decade ago, and in the intervening time, the very few states (6) within the United States that actually conduct such executions have become completely isolated in relation to the rest of the world. In 1997, even the Chinese authorities amended their criminal law to abolish the death penalty for offenders under 18 years old at the time of the crime. AMNESTY INTERNATIONAL, ON THE WRONG SIDE OF HISTORY: CHILDREN AND THE DEATH PENALTY IN THE USA, AMR 51/058/1998, Oct. 1, 1998;1 see also Craig S. Smith, China Justice: Swift Passage to Execution, NEW YORK TIMES, June 19, 2001, at A1 (portraying the general brutality of the Chinese death penalty). As is noted in Beazley's petition, essentially every formerly offending 1 China, in fact, changed its law in response to a finding by the United Nations Committee on the Rights of the Child that China's practice was "incompatible with the provisions of the" Convention on the Rights of the Child, which China had ratified in 1992. ON THE WRONG SIDE OF HISTORY, supra. The United Nations Human Rights Committee has made the comparable finding that the United States' reservation to Article 6, Paragraph 5, of the International Covenant on Civil and Political Rights violates the object and purpose of the Covenant and should be withdrawn. Id. Yet the United States has not complied, and states within the United States have continued to execute child offenders, a practice the Human Rights Committee has said it "deplores." 2 national government now has either officially abandoned the practice of executing child offenders or, at least, has represented to the United Nations that it is ceasing to carry it out. Every organized government in the world, except the United States, has ratified the United Nations Convention on the Rights of the Child, which forbids execution of child offenders. The United Nations Sub-Commission on the Promotion and Protection of Human Rights reiterated in August 2000 that the execution of child offenders violates customary international law and "[c]ondemn[ed] unequivocally the imposition and execution of the death penalty on those aged under 18 at the time of the commission of the offence." AMNESTY INTERNATIONAL, CHILDREN AND THE DEATH PENALTY, EXECUTIONS WORLDWIDE SINCE 1990, ACT 50/010/2000, December 14, 2000 (Appendix: Resolution 2000/17, adopted on 17 August 2000 by the UN Sub- Commission on the Promotion and Protection of Human Rights) (emphasis in original). The Sub-Commission called upon retentionist states to change their laws as soon as possible and "to remind their judges that the imposition of the death penalty against such offenders is in violation of international law." Id. The federal government and twenty-seven states (including abolitionist states) currently bar the execution of child offenders. Testimony on Behalf of the American Bar Association on the Elimination of the Juvenile Death Penalty, before the [Texas] House Committee on Criminal Jurisprudence, House Bill 2048, April 17, 2001 [hereinafter "ABA Testimony"]. Although the ratio of states prohibiting and allowing child executions has not changed dramatically since Stanford, only three states have actually carried out such executions since 1993. AMNESTY INTERNATIONAL, CHILDREN AND THE DEATH PENALTY: EXECUTIONS WORLDWIDE SINCE 1990, ACT 50/010/2000, December 14, 2000 (citing Louisiana (1990), Texas (1992, 1993-2, 1998-2, 2000-2), Missouri (1993), Georgia (1993), Virginia (1998, 2000-2), and Oklahoma (1999)). Texas has accounted for half of the United States' total. Texas executions of child offenders, in fact, account for one quarter of all documented executions of child offenders worldwide since 1990. Meanwhile, legislation was introduced in the 2000-2001 legislative season to end the juvenile death penalty in Arkansas, Indiana, Kentucky, Pennsylvania, Mississippi, Nevada, South 3 Carolina, South Dakota, and Texas. ABA Testimony, supra. The trends toward changing the law in the United States, compliance by the federal government with the international standard, and the complete isolation of TEXAS as the world's most prolific executioner of child offenders provide strong grounds for the Justices of this Court to join Justice Stevens in his finding that the execution of child offenders is no longer tolerable under the Eighth Amendment. Another strong indicator that at least four Justices would consider this issue worthy of certiorari review is found in this Court's recent acceptance of review in McCarver v. North Carolina, 121 S. Ct. 1401 (March 26, 2001) (Mem.), which treats the similar question of whether executing persons with mental retardation may be tolerated under the Eighth Amendment. The evidence of international consensus against the execution of child offenders is markedly stronger than that against execution of persons with mental retardation. See Brief Amicus Curiae of the American Bar Association in Support of Petitioner, McCarver v. North Carolina, 2001 WL 630269, at *24 (noting that "at least 100 countries now bar, by treaty or legislation, the execution of persons with mental retardation" whereas every organized government in the world, other than the United States, has barred by treaty the execution of child offenders). Roughly the same number of states (15 in total) have specific legislation barring the death penalty for juvenile offenders as states barring execution of offenders with mental retardation (14 in total, plus the recent signing into law of a statute in Florida). Id. Justice Ginsberg has called for a moratorium on all executions. http://www.tdcaa.com/dynam_iprosecresults.asp?srch=all (website: Texas District and County Attorneys Association) ("SCT Justice Ginsberg Urges End to Death Penalty"). Presumably her position is commensurate with the American Bar Association's Recommendation in 1997 for a moratorium on the death penalty until every jurisdiction were to implement policies and procedures to prevent execution of persons who were under the age of 18 at the time of their offenses. INDIVIDUAL RIGHTS AND RESPONSIBILITIES SECTION, AMERICAN BAR ASSOCIATION, REPORT WITH RECOMMENDATIONS NO. 107 (ABA Midyear Meeting 1997). Justice Breyer would have granted a stay in Breard v. Greene, 523 U.S. 371, 380 (1998) 4 (Breyer, J., dissenting), where the defendant could have raised a colorable claim to overcoming the procedural bar to merits review of his issue, violation by the State of Virginia of the Vienna Convention on the Law of Consular Relations. Justice Breyer noted that the defendant could have raised the issue that "the nature of his claim, were [the Court] to accept it, is such as to create a `watershed rule of criminal procedure'" under Teague v. Lane, 489 U.S. 288, 311 (1989). Id. Beazley repeatedly has urged that his ineligibility for the death sentence, if his Covenant or Eighth Amendment claims were accepted by the Court, would provide him with an exception to the procedural default found by the district court for failure to exhaust those claims in the state courts. See Sawyer v. Whitley, 505 U.S. 333, 350 (1992) (noting that "[s]ensible meaning is given to the term `innocence of the death penalty' by allowing a showing . that there was no aggravating circumstance or that some other condition of eligibility had not been met"). The Fifth Circuit appeared to agree that the "actual innocence of the death penalty" exception would apply if Beazley were to prevail on the merits. Beazley v. Johnson, 242 F.3d 248, 265-66, 268- 69 (5th Cir. 2001). Respondent has not contested that Beazley's Covenant and Eighth Amendment issues would be exempt from the "new rule" prohibition of Teague, recognizing that a favorable finding on the merits would "deprive[] the State of the power to impose" the death penalty on Beazley.
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