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Supreme Court to rule on executing the intellectually disabled — again

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Since the death penalty was reinstated by the Supreme Court in 1976, Texas has executed 538 inmates — more than a third of 1,440 executions to take place over the last 40 years. But, as some have argued, it may soon be revealed that an alarming number of those executions were carried out against defendants who could claim an intellectual disability.

In 2002’s Atkins v. Virginia case, the Supreme Court ruled that executing people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishments.

Associate Justice John P. Stevens wrote that intellectual disabilities do not allow defendants to “act with the level of moral culpability that characterizes the most serious adult criminal conduct,” even in regards to the most heinous cases.

In his ruling, Stevens also addressed the wide scope of what could or could not be considered intellectually disabled. “Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus,” he wrote, using the now-outdated term “mental retardation” which has since been replaced by “intellectual disability” as the preferred term. At the time, the Court left the states “the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.”

However, in 2014’s Hall v. Florida, the Court narrowed the discretion under which states can determine who and who is not intellectually disabled. The ruling found that the previously suggested IQ threshold — approximately under 70, according to Atkins v. Virginia — was an unconstitutional method of determining an intellectual disability in a capital punishment case. In other words, people with IQs over 70 could potentially still have an intellectual disability and should be spared from execution. The Court encouraged clinical tests to supplement any IQ tests in determining if a defendant has an intellectual disability.

Using a 2004 ruling, known as Ex Parte Jose Garcia Briseno, the Texas Court of Criminal Appeals has been operating on its own loose definition of intellectual disability to determine who the state may execute. The C.C.A. said that reliance on clinical testing is “exceedingly subjective.” The court’s responsibility, it said, was “to define that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” The C.C.A. declared that John Steinbeck’s fictional character Lennie from Of Mice and Men was the type of offender “most” Texas residents would regard as deserving exemption.

The C.C.A. came to the conclusion that it is possible to be considered intellectually disabled by medical and scientific standards, yet not disabled enough to be saved from being executed in Texas.

The tact taken to determining intellectual disability within the Texas courts is so different from national standards that, according to the American Bar Association, the state has regularly sentenced to death “defendants with intellectual disabilities whom other jurisdictions almost certainly would have recognized as exempt.”

Texas Department of Corrections

Texas Department of Corrections

Jordan Steiker, a professor at the University of Texas Law School, and Richard Burr, the lawyer who represented Jose Briseno, have estimated that Texas has executed 30 to 40 people with significant claims of intellectual disability, and that between 30 and 40 of the 242 people on Texas death row also have strong claims to exemption.

In The Washington Post on Nov. 28, Steiker and his sister, Carol Steiker, a professor at Harvard Law School, wrote a damning editorial on the topic.

Even as the United States remains the only Western democracy that executes its citizens, the Supreme Court has exempted certain categories of our most vulnerable individuals from execution, including those with intellectual disability,” they wrote. “Texas, however, routinely fails to enforce this protection.”

According to the Steikers, Texas “focuses on questions that no medical professional would deem appropriate in diagnosing intellectual disability, such as whether an offender’s family and friends thought he had intellectual disability.”

They continued, “Instead of relying on the same approach to intellectual disability that Texas uses in every other context (such as placement in special education or eligibility for disability benefits), the court sought to redefine the condition in the capital context so that only offenders who meet crude stereotypes about intellectual disability are shielded from execution.”

The C.C.A.’s now-infamous “Lennie standard” has now come before the Supreme Court, as the justices heard oral arguments in the Moore v. Texas on Tuesday, Nov. 29. The case will determine if 57-year-old Bobby James Moore should be exempt from capital punishment. Moore has been on death row for 37 years after he shot and killed a sales clerk during a failed robbery in Houston.

Moore has gone through several rounds of Texan judicial decisions, including a 1995 federal court decision to allow Moore to be resentenced after the court found that his lawyers had “grossly mishandled the representation of Moore and violated their oath as members of the bar with astonishing frequency.” In 2001, he was sentenced to death again, after a jury determined that there was not sufficient mitigating evidence to give him a sentence of life imprisonment.

As Moore was waiting for the C.C.A. to review that decision, the Supreme Court made its decision on Atkins, and Moore’s lawyer pushed to have his sentence overturned. In 2014, a state judge found that Moore was intellectually disabled, and recommended that the C.C.A. exempt Moore from execution. The C.C.A. rejected the recommendation, because that court “erred by disregarding our case law” in defining intellectual disability. The appeals court said, “We conclude that, at this juncture, the legal test we established in Briseno remains adequately ‘informed by the medical community’s diagnostic framework.’” The decision made the Supreme Court will likely determine Moore’s fate.

It is widely agreed, even by the state of Texas, that Moore is intellectually disabled. He failed the first grade twice, and was only able to move onto the second grade because school officials believed he should be with children closer to his own age. In the fifth grade, Moore was hit in the head with a chain and a brick, which may have caused major trauma to his brain. When a neuropsychologist examined Moore in 2013, Moore was given a Tinkertoy test with the instructions to “make something.” A score below seven on the test indicates that a person is unable to live independently. According to testimony from the neuropsychologist, Moore “had a score of one, which is the lowest score I’ve ever recorded and I’ve done a lot of testing of brain-injury people.”

Texas has shown a history of ignoring the facts when it comes to intellectual disability. Elroy Chester pleaded guilty to murder in 1998, the C.C.A. denied his claim of intellectual disability in 2007, the Supreme Court declined to hear his case in 2012 and he was then executed in 2013. This is despite the fact that his younger sister had to help him identify colors and sort laundry, as well as the fact that he scored as low as 59 on an IQ test and only as high as 69. At the age of 29, he had the vocabulary of a six-year-old.

Moore’s lawyers told the Supreme Court that “Texas’s approach defies both the Constitution and common sense.” They added that the case “squarely presents the deeply troubling prospect that intellectually disabled individuals — like Moore — will be executed in violation of their Eighth Amendment rights.” For people like Elroy Chester, it was not merely a prospect but a reality. For Moore? That remains to be seen.

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