April 9, 2017
Moore v. Texas: The Supreme Court Limits State Discretion to Make the “Protection of Human Dignity” a Reality for the Intellectually Disabled
It has been fifteen years since the United States Supreme Court decided Atkins v. Virginia,1 the landmark decision finding that persons with intellectual disabilities are not eligible for the death penalty. The Court was clear about why the execution of this vulnerable and “less morally culpable” group of people violated the Eighth Amendment’s prohibition against cruel and unusual punishments.2 But it gave states no guidance about how to substantively and procedurally implement the decision, acknowledging the potential for “serious disagreement . . . in determining which offenders are in fact [intellectually disabled].”3 This broad discretion troubled some observers, who worried that the protections of Atkins would not be adequately implemented in some states. The Court, however, maintained a “hands off” approach until 2014, when it found Florida’s approach unconstitutional in Hall v. Florida.4
Two years later, in Moore v. Texas,5 the Court agreed to review the standard and procedures used in Texas. Unlike other states, the Texas legislature had not adopted a statute to implement Atkins, giving Texas courts the final word. In Ex Parte Briseño,6 the Texas Court of Criminal Appeals (CCA) adopted the definitions and standards from the 1992 edition of the American Association on Mental Retardation7 Manual. This included a requirement that a defendant’s “adaptive deficits” be related to his intellectual disability.8 For that purpose, the Texas court established seven unique factors of its own design.9 These factors were not based on any medical, judicial, or scientific authority: instead, they attempted to assess the “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.”10
Texas’s use of a “we know it when we see it” approach to identify intellectual disability was as bewildering as it was dangerous. Long criticized by legal, medical, and mental health professionals, the Briseño factors had no diagnostic legitimacy. Not only were the factors “wholly unclinical,” but they also “advanced lay perceptions” and stereotypes of the intellectually disabled that had long been debunked by the medical profession.11 In short, the criteria were as meaningless as answers given by a Magic 8 Ball. Unfortunately, they were also lethally determinative of who would live or die in Texas.
Bobby James Moore was sentenced to death in 1980 for killing a clerk during a grocery store robbery. At his trial, just two months after his arrest, his incompetent lawyers presented no evidence of Moore’s intellectual disability (or any mitigation evidence at all). Moore was granted a new trial and sentenced to death again; while on appeal, Atkins was decided. In 2014, in connection with his claim that he should not be executed because he was intellectually disabled, he was granted a two-day evidentiary hearing by the Texas state habeas court.
The evidence established that Moore had significant mental and social difficulties beginning at an early age. At age 13,
Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Often, he was separated from the rest of the class and told to draw pictures. Moore’s father, teachers, and peers called him “stupid” for his slow reading and speech. After failing every subject in the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trashcans, even after two bouts of food poisoning.12
In its review of Moore’s claim, the state habeas court consulted current medical diagnostic standards and the generally accepted intellectual disability diagnostic definition.13 The court did not apply the Briseño factors. After considering all the evidence, the court concluded that Moore was intellectually disabled and could not be executed.14
On appeal, the Texas Court of Criminal Appeals reversed. It held that the lower court was required to apply the Briseño factors, even though the medical diagnosis of intellectual disability had changed dramatically in the intervening years. It rejected five of seven of Moore’s sub-average IQ scores as “unreliable,” then concluded that Moore’s ability to live on the streets, mow lawns, and play pool for money weakened the significance of his adaptive deficits. Finally, the CCA examined each of the seven Briseño factors and found that they “weigh[ed] heavily” against a finding that Moore had demonstrated intellectual disability.15
Last week, the United States Supreme Court vacated the CCA’s decision. Justice Ginsburg, writing for the five-person majority, held that it was error for the lower court to dismiss Moore’s IQ scores and emphasize Moore’s adaptive strengths instead of focusing on his deficits. The majority also found that the CCA had improperly required a showing that Moore’s adaptive deficits were not related to a “personality disorder,” and failed to appreciate that the suffering and trauma Moore had endured as a child were risk factors for intellectual disability, not another explanation for his problems.16
Most egregious, however, was the CCA’s utilization of the Briseño factors. “Texas,” Justice Ginsburg concluded, “cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”17 The Briseño factors “are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseño factors ‘create an unacceptable risk that persons with intellectual disability will be executed.’”18
Chief Justice Roberts and Justices Thomas and Alito dissented, just as they had three years earlier in Hall. Although all eight justices agreed that the Briseño factors were “an unacceptable method of enforcing the guarantee of Atkins,” Chief Justice Roberts, writing for the dissent, strongly disagreed with almost every other aspect of the majority’s decision. “[J]udges, not clinicians, should determine the content of the Eighth Amendment,” he wrote.19 In his view, the majority had wrongly established “that the determination of what is cruel and unusual rests on a judicial judgment about societal standards of decency, not a medical assessment of clinical practice.” This was an echo of the dissent in Hall, which had also criticized the Court’s “reliance on the views of professional organizations.”20
In Atkins, the Court left “to the states the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.”21 But the decisions in Hall and Moore make clear that the flexibility given to states is not unlimited—and for good reason. As Justice Ginsburg quoted from Hall, “If the states were to have complete autonomy to define intellectual disability as they wished, Atkins could become a nullity and the Eighth Amendment’s protection of human dignity would not become a reality.”22
Back in 2004, in a deeply misguided attempt to explain the court’s reliance on the now-discredited Briseño factors, Judge Cochran looked to the character of Lennie Small in John Steinbeck’s Of Mice and Men. “Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt” from the death penalty, she wrote.23 “But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?”24 Even John Steinbeck’s son was moved to publicly register his disbelief that the court’s understanding of intellectual disability appeared intertwined with the traits of a fictional character. “The character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability,” Thomas Steinbeck said. “I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.”25
And yet it took until 2017 before the Supreme Court agreed to review one of dozens of cases involving impaired defendants that the state of Texas decided using the Briseño factors. It is estimated that Texas has executed thirty to forty people with strong claims of intellectual disability in recent years.26 Robert Ladd, whose IQ was measured at 67 as a teenager, was executed in 2015.27 Elroy Chester, who had an IQ of 68 and could not name all the months of the year, was executed in 2013.28 Marvin Wilson, who had an IQ of 61 and “sucked his thumb into adulthood”29 was executed in 2012. For Moore and other intellectually disabled prisoners on Texas’s death row, the Court’s decision is reason for celebration. But it will always be important to remember those for whom this decision is just too late.
Robin M. Maher is a capital defender and a Professional Lecturer in Law at The George Washington University Law School. Previously, she was the Director of the American Bar Association Death Penalty Representation Project. In addition to direct representation, Ms. Maher’s work has included legal reform efforts with state and national legislators; training of judges and defense lawyers on the fundamentals of effective capital defense; systemic litigation in jurisdictions that fail to provide necessary defense services; and recruitment of volunteer lawyers from civil law firms to represent death-sentenced persons who are without counsel. She is a frequent trainer of lawyers and judges in the United States and internationally. Ms. Maher led the effort that resulted in the American Bar Association Guidelines for the Performance of Defense Counsel in Death Penalty Cases, now the national standard of care for the capital defense effort. The opinions in this article are strictly her own.
- 536 U.S. 304 (2002).
- Id. at 320.
- Id. at 317.
- The Court’s decision in Hall v. Florida, 572 U.S. __, 134 S. Ct. 1986 (2014), twelve years after Atkins, was the first time the Court addressed one state’s method. A sharply divided Court struck down Florida’s requirement that a defendant present an IQ score of 70 or below to demonstrate intellectual disability. The majority held that Florida’s rule “was in direct opposition to the views of those who design, administer, and interpret the IQ test” and also that a review of other state approaches established a consensus that Florida’s rule was not a “proper or humane” way of deciding whether someone was intellectually disabled. Hall, 134 S. Ct. at 6, 16, 22.
- No. 15–797 (U.S. Mar. 28, 2017).
- Ex Parte Briseño, 135 S.W.3d 1 (Tex. Crim. App. 2004).
- The American Association on Mental Retardation (AAMR) is now the American Association on Intellectual and Developmental Disabilities (AAIDD). The term “mental retardation” has been replaced with the term “intellectual disability” to describe the identical phenomenon.
- Briseño, 135 S.W.3d at 13. Deficiencies in “the collection of conceptual, social, and practical skills” constitute adaptive deficits. American Association on Intellectual and Developmental Disabilities, Diagnostic Adaptive Behavior Scale, https://aaidd.org/intellectual-disability/diagnostic-adaptive-behavior-scale#.WOQ_DxIrL_Q (last visited Apr. 9, 2017).
- The seven “Briseño factors” are:
- Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at that time, and, if so, act in accordance with that determination?
- Has the person formulated plans and carried them through or is his conduct impulsive?
- Does his conduct show leadership or does it show that he is led around by others?
- Is his conduct in response to external stimuli rational and appropriate regardless of whether it is socially acceptable?
- Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
- Can the person hide facts or lie effectively in his own or others’ interests?
- Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?
Briseño, 135 S.W.3d, at 8–9.
- Id. at 6.
- Moore, slip op. at 15, 18.
- Moore, slip op. at 3.
- There are three criteria: (1) significantly subaverage intellectual functioning, usually established with IQ tests; (2) deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances); and (3) onset of these deficits before age 18. See Atkins, 536 U.S. at 318; Hall, 134 S. Ct. at 1994.
- See Ex Parte Moore, No. 314483-C (185th Jud. Dist., Harris Cty., Tex., Feb. 6, 2015).
- Ex Parte Moore, 470 S.W.3d 481, 522–23, 526–27 (Tex. Crim. App. 2015).
- Moore, slip op. at 14.
- Id. at 16.
- Id. at 2 (quoting Hall, 134 S. Ct. at 1990).
- Moore, slip op. at 1, 9.
- Hall, 134 S. Ct. at 2005 (Alito, J., dissenting).
- Atkins, 536 U.S. at 317 (citations omitted).
- Moore, slip op. at 17 (quoting Hall, 134 S. Ct. at 1999).
- Ex Parte Briseño, 135 S.W.3d at 6.
- Robert Mackey, Steinbeck Family Outraged that Texas Judge Cited ‘Of Mice and Men’ in Execution Ruling, N.Y. Times, Aug. 8, 2012.
- University of Texas Law School Professor Jordan Steiker and Richard Burr, the lawyer who represented Jose Briseño, estimate that Texas has executed thirty to forty people with strong claims of intellectual disability, and that between thirty and forty of the two hundred and forty-two people remaining on the state’s death row have similarly strong claims to exemption. Lincoln Caplan, When Will Texas Stop Executing the Intellectually Disabled?, New Yorker, Nov. 30, 2016.
- Petition for Writ of Certiorari, Ladd v. Texas, 748 F.3d 637 (5th Cir. 2014) (No. 13–70011).
- Lincoln Caplan, When Will Texas Stop Executing the Intellectually Disabled?, New Yorker, Nov. 30, 2016.
- Andrew Cohen, Of Mice and Men: The Execution of Marvin Wilson, Atlantic, Aug. 8, 2012.
Robin Maher, Response, Moore v. Texas: The Supreme Court Limits State Discretion to Make the “Protection of Human Dignity” a Reality for the Intellectually Disabled, Geo. Wash. L. Rev. On the Docket (Apr. 9, 2017), http://www.gwlr.org/moorevtexas/.