WASHINGTON – A majority of U.S. Supreme Court justices Tuesday appeared to side with a Texas death-row inmate who argues his intellectual disability would make executing him unconstitutional.
The case involves a ruling last year by the Texas Court of Criminal Appeals, the state’s highest criminal court, reversing a lower court’s decision and clearing a hurdle to the execution of Bobby James Moore. Moore, 57, was convicted of the shotgun slaying of a 73-year-old Houston supermarket clerk during a botched robbery in 1980, when Moore was 20.
The Texas appeals court rejected Moore’s claim of intellectual disability, relying in part on a non-clinical test based on mentally challenged farm laborer Lennie Smalls from John Steinbeck’s 1937 novel “Of Mice and Men.” The appeals court cited seven non-clinical factors that would spare Lennie execution “by virtue of his lack of reasoning ability and adaptive skills.”
non-clinical “evidentiary factors”
During oral arguments Tuesday, Justice Elena Kagan singled out Texas for relying on what has become widely known as the “Lennie standard” in determining intellectual disabilities in death penalty cases in the state, which also applied a 1992 definition of intellectual disability.
Kagan asked Texas Solicitor General Scott Keller: “A person who every clinician would find to be intellectually disabled, the state does not have to find intellectually disabled? You’re supposed to rely on what the neighbor said and what the teacher with absolutely no experience with respect to intellectual disabilities said?”
Keller said the state appeals court followed the U.S. Supreme Court standard for assessing intellectual disability.
“Texas is well within the national consensus,” Keller told the justices.
But Moore’s attorney, Clifford Sloan, disputed that.
“Texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards,” Sloan said.
“It relies on harmful and inappropriate lay stereotypes… Prohibiting the use of current medical standards, and instead requiring the use of 1992 standards, violates the Constitution. And it violates common sense.”
Sloan argued the Texas appeals court’s ruling violates the Constitution’s prohibition on cruel and unusual punishment and the Supreme Court’s 2002 decision in Atkins v. Virginia. In that case, the court ruled 6-3 that executing “mentally retarded” people violated the Eighth Amendment’s ban on cruel and unusual punishment but offered only general guidelines, leaving it to states to determine intellectual disability.
Two years ago, the Supreme Court ruled 5-4 that the execution of an intellectually disabled murderer in Florida was unconstitutional because the state had forbidden any evidence of disability if an inmate’s IQ was over 70. (The inmate had once scored 71.)
Justice Anthony Kennedy, along with the Supreme Court’s liberal justices, expressed concern the Texas ruling could result in intellectually disabled defendants being executed.
Kennedy said Moore would be assessed as intellectually disabled under “almost uniform medical consensus.”
Justice Samuel Alito, however, said some experts deemed Texas’s method of determining intellectual deficits valid. “Are these quacks?” he asked Sloan.
Texas has executed 538 people in the past four decades, nearly five times the number in any other state.
The Supreme Court’s ruling in Moore v. Texas will not have broad implications on use of the death penalty, but could influence standards on measuring intellectual disability in capital cases.
The American Civil Liberties Union and numerous death penalty opponents and human rights, religious and psychiatric groups have filed briefs in support of Moore, while attorneys general in 16 states backed the Texas court’s decision.
Another case involving the death penalty in Texas, Buck v. Davis, is before the Supreme Court. In that case, a black Texas death-row inmate argued he deserves a new sentencing hearing because an expert defense witness testified blacks are more likely to commit future crimes.
Decisions in both cases are expected by June.