Supreme Court Hears Texas Death Penalty Case Challenging Intellectual Disability StandardDecember 01, 2016

The United States Supreme Court heard oral arguments Tuesday in the case of Bobby Moore, whom Texas intends to execute despite strong evidence that he is intellectually disabled.

In 2002, the Supreme Court in Atkins v. Virginia held that the Eighth Amendment prohibits imposing the death penalty on intellectually disabled people. The Court wrote that a finding of intellectual disability requires proof of "subaverage intellectual functioning" (low IQ scores); deficits in basic social, academic, and practical skills; and the presence of both conditions before age 18, but left it to the states to work out the details. It has since struck down the strict IQ score cutoff adopted in Florida, and appears poised to strike down Texas's rule, which rejects reliance on clinical standards and instead requires a defendant to show that "Texas citizens would agree" he is too impaired to be executed. As professors Carol Stiker and Jordan Steiker wrote:

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. As a result, inmates who would have been found ineligible for execution in every other state have been denied relief in the Texas courts. Some have been executed.

Bobby Moore was convicted in the shooting death of a grocery store clerk during a failed robbery in 1980. After Atkins, lawyers presented evidence of his intellectual disability, including that he failed first grade twice; likely suffered traumatic brain injury when he was hit in the head with a chain and a brick in fifth grade; and at 13, did not understand the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of addition, or standard units of measurement. The trial court found that Mr. Moore is intellectually disabled based on current medical standards, but the Texas Court of Criminal Appeals (CCA) reversed, holding he did not meet the state's test.

At oral argument, the majority of justices expressed skepticism about Texas's standard. When Texas solicitor general Scott Keller argued that it was not the state's goal "to screen out individuals and deny them relief," Justice Anthony Kennedy asked, "But isn't that the effect?" 

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor focused on Texas's rejection of clinical standards. Justice Kagan observed that in Texas, "people with mild impairment can be executed, even though the clinicians would find those people to be intellectually disabled," and criticized the vagueness of the state's test, which she said "doesn't tell you anything about what qualities to look to and the extent of impairment." She noted that the Court's precedent makes clear, "You don't get to apply [Atkins] however you want."

Justice Sotomayor pointed out that Mr. Moore "was eating out of garbage cans repeatedly and getting sick after each time he did it, but not learning from his mistakes." She noted that there were no cases where a mildly disabled person had been found disabled under the Texas test.

Justice Breyer also expressed concern about the arbitrariness of decisions about who is intellectually disabled, which he said should be based on "technical definitions" of intellectual disability. Indeed, the Court has held that standards for intellectual disability must be "informed by the medical community's diagnostic framework" and may not "disregard established medical practice."

Texas leads the nation in executions, having put to death more than a third of the people executed nationwide over the past four decades. Experts estimate that Texas has executed 30 to 40 people with strong claims of intellectual disability, and a similar number of the 242 people currently facing execution in Texas likewise have strong evidence that they should be exempt from the death penalty.