Supreme Court takes up case of intellectually disabled man’s death penalty

Supreme Court takes up case of intellectually disabled man’s death penalty

By Gary Gately   
The U.S. Supreme Court building.

Bobby James Moore's lawyers argue the state used an outdated definition to incorrectly determine he had no intellectual deficits

WASHINGTON – Lawyers for a Texas death-row inmate will argue before the U.S. Supreme Court Tuesday that executing him would violate the Constitution and court precedent because he is intellectually disabled.

The lawyers for Bobby James Moore, 57, say in briefs that Texas’s highest criminal court required the state to rely on outdated medical standards, leading to the erroneous finding that Moore suffers no intellectual disabilities.

The Texas Court of Criminal Appeals ruling last year overturned a lower court decision, clearing a hurdle to Moore’s execution for the shotgun slaying of a 73-year-old Houston supermarket clerk during a botched robbery in 1980, when Moore was 20.

The ACLU 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.

Moore’s lawyers contend in Moore v. Texas that the state appeals court decision violates the Constitution’s prohibition on “cruel and unusual punishment.” They cited a (6-3) 2002 U.S. Supreme Court ruling Atkins v. Virginia that executing “mentally retarded” people violated the Eighth Amendment’s ban on cruel and unusual punishment. But in that decision, the Supreme Court left it to states to determine intellectual disability, offering only general guidelines based on low IQ scores and difficulty performing basic functions.

Last year, the Supreme Court ruled 5-4 in Hall v. Florida that assessing intellectual disabilities only through IQ scores risked execution of an intellectually disabled person.

The Texas Court of Criminal Appeals ruled the state must rely on a 1992 definition for intellectual disability, now widely viewed as outdated for its lack of emphasis on clinical evaluations, unless the state legislature changes the definition.

Texas Court of Criminal Appeals Judge Cathy Cochran also invoked Lennie Small from John Steinbeck’s “Of Mice and Men” as a test for determining intellectual disability.

She wrote that most Texans would agree Lennie – “by virtue of his lack of reasoning ability and adaptive skills” – should be exempt from the death penalty.

“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?” Cochran wrote.

The office of Republican Texas Attorney General Ken Paxton argued in briefs that the state court’s ruling complies with U.S. Supreme Court precedents and disputes Moore’s contention that the execution would violate the Eight Amendment’s prohibition of cruel and unusual punishment.

But Moore attorney Clifford Sloan countered: “Texas’s highest criminal court has decided that Texas courts must continue to apply a 1992 standard of intellectual disability unless and until the State’s legislature sees fit to enact a statute, even though the applicable medical standards for diagnosing intellectual disability have changed since that time.

“The State’s approach defies both the Constitution and common sense” and “conflicts with the approach taken by other state and federal courts.”

Moore’s lawyers had also asked the Supreme Court to weigh whether his long incarceration violated the Eighth Amendment, but after first agreeing to do so, the court decided not to and is hearing only the challenge to the death penalty based on disability.

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