In 2002, in Atkins v. Virginia, the Supreme Court ruled that
the Constitution’s prohibition of cruel and unusual punishment bars the
execution of individuals who are intellectually disabled. The court did not,
however, provide detailed guidelines on how states should determine whether
someone is intellectually disabled, leaving that job to the states. Twelve
years later, in Hall v. Florida, the justices struck down a
Florida rule that created a bright-line cut-off for intellectual disability
that excluded anyone with an IQ score above 70.
The court made clear that its
decision in Atkins did not give states
“unfettered discretion to define the full scope of the constitutional
protection” for the intellectually disabled. Rather, the court emphasized, the
legal determination of who is intellectually disabled should be “informed by
the medical community’s diagnostic framework.” Next week, in the case of a
Texas death-row inmate, the justices will return to the question of what form
that legal definition should take – and, in particular, how up-to-date the
standards used to determine intellectual disability must be.
Lawyers for inmate Bobby James
Moore tell the justices that Moore failed first grade twice, but was still
advanced to the next grade so that he wouldn’t be significantly older than the
other students in his year. When he was 13, they add, he still “lacked basic
understanding of the days of the week, the months of the year, the seasons,
telling time, the standards of measure, and the principle that subtraction is
the reverse of addition.” And, to make matters worse, Moore “also suffered a
debilitating head injury during Texas’s schoolhouse integration battles”: He
was “hit in the head with a chain and a brick as he tried to make his way to
the bus.”
In 1980, when Moore was 20, he
and two other men robbed a supermarket. One of the store’s employees was shot
and killed during the robbery; Moore was convicted of the shooting and
sentenced to death. Over 30 years later, Moore was again sentenced to death,
but a state trial court determined, after a two-day hearing, that Moore is
intellectually disabled and cannot be executed.
On appeal, the Texas Court of
Criminal Appeals reversed, holding that Moore had not established that he was
intellectually disabled. Moore asked the Supreme Court to review that ruling,
which it agreed to do last June.
The dispute between Moore and
the state of Texas runs deep. The two sides disagree not only about whether the
lower court’s ruling was correct, but also about what the court actually
decided. Moore contends that the CCA ruled that, when determining whether
someone is intellectually disabled, Texas courts are required to use a
definition of intellectual disability that dates back to 1992, rather than more
current medical standards. Based on the 1992 standards, the CCA concluded,
Moore is not intellectually disabled.
Moore argues that the Texas
court’s “head-in-the-sand approach to advances in the diagnostic framework” is
inconsistent with the Supreme Court’s rulings in Atkins and Hall. In those
cases, he claims, the justices indicated that the determination of whether
someone is intellectually disabled “must be informed by the medical diagnostic
framework,” which is in turn governed by current medical standards. If states
do not take current medical standards into account, he warns, they run the risk
that someone who is intellectually disabled under the current standards will
nonetheless be executed. The failure to consider current medical standards, he
continues, “is unusual and highly idiosyncratic.” Indeed, he notes, even Texas
itself takes current medical standards into account when assessing whether
someone is intellectually disabled for other purposes, such as a discharge from
a juvenile justice program.
The state counters that the
CCA did not, as Moore contends, in fact prohibit state courts from considering
current medical standards. Rather, it explains, the court considered more
recent resources in Moore’s case, and it even acknowledged that two diagnostic
manuals used to diagnose intellectual disability had been revised. However, the
court simply concluded that, despite the revisions, there was no need to change
the state’s standard because that standard “remains adequately informed by the
medical community’s diagnostic framework.”
The framework that the CCA
used to determine that Moore is not intellectually disabled is, the state
argues, fully consistent with the Supreme Court’s decisions in Atkins and Hall. In Atkins, the court indicated that states should have
some leeway to “develop substantive standards implementing the prohibition on
executing persons with intellectual disability,” and in Hall it made clear that those standards should be
“informed by the medical community’s diagnostic framework.” But what it did not
do, the state emphasizes, was to require the states “to strictly follow a
particular clinical definition of intellectual disability.”
Texas is hardly an outlier in
not expressly adopting the current standards, the state observes: Only four of
the states that impose the death penalty have adopted one of the revised
diagnostic manuals as their legal standard for intellectual disability. And of
those four, the state adds, only one adopted the manual in an effort to
incorporate current medical standards into its legal definition of intellectual
disability; two others adopted the standards contained in the manual “only
after determining that they did not effect a substantive change.” On the other
hand, Texas points out, 24 states still use a test based on earlier versions of
the manuals.
Moore contends that the lower
court also erred when it relied on a series of “evidentiary factors” developed
from both stereotypes of the intellectually disabled and a famous literary
character – Lennie in John Steinbeck’s “Of Mice and Men,” a work of fiction –
in determining whether Moore was intellectually disabled. Those factors, Moore
argues, are “unapologetically non-clinical” and are “based, at least in part,
on the fundamental misconception that only a subset of those diagnosed as
intellectually disabled may be excluded from execution.” Like the state’s use
of outdated standards, he concludes, the use of these factors creates a risk
that inmates with intellectual disabilities will be executed, in violation of
the Constitution, because their disabilities, “though constitutionally
significant, may be less obvious and less severe than those of other
individuals.”
Texas counters that the
factors referenced in the CCA’s decision are not part of its three-part test
for intellectual disabilities and have no real link to “Of Mice and Men.”
Rather, it stresses, the CCA has “made clear that these additional factors”
“are entirely optional.” And in any event, the state adds, the factors made no
difference to the outcome of Moore’s case: The lower court’s discussion of
these “optional” factors took up only two of the 92 pages of the majority’s
opinion and were used only to support “a second alternative holding” disposing
of Moore’s claim that he is intellectually disabled and cannot be executed.
The Supreme Court’s ruling in
Moore’s case could literally be a matter of life and death for Moore himself.
But the case’s potential implications could be much broader, extending to other
inmates who argue that they are intellectually disabled – not only in Texas but
also in other states that have not adopted legal definitions that are expressly
based on the current medical standards. Justice Anthony Kennedy was the author
of the court’s 2014 decision in Hall, which was
joined by the court’s four more liberal justices. With all five of those
justices still on the court, the outlook seems favorable for Moore, but we will
know more after next week’s argument.
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