Justices debate how to define intellectual disability in Texas death row case

WASHINGTON (TEXAS TRIBUNE) — The U.S. Supreme Court appeared fairly split among party lines during oral arguments Tuesday in a Texas case involving how to define intellectual disability among death row inmates.

The high court has previously ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.

On a rainy Tuesday morning, the eight justices listened to arguments in Moore v. Texas and pondered whether to further restrict how state courts can handle cases where a death row inmate may have “borderline” intellectual disability, specifically where an IQ falls between 70 and 75.

“There will be a bunch of easy cases, and then there will be cases like your client who has been on death row for 36 years,” Justice Stephen Breyer said to attorney Cliff Sloan, who argued for petitioner Bobby Moore. “What are courts supposed to do? Are we supposed to have all these cases here?”

In April 1980, Moore, then 20, walked into a Houston supermarket with two other men, wearing a wig and holding a shotgun, according to Texas’ brief to the high court. He approached the clerks’ counter and shot 73-year-old James McCarble once in the head, killing him. 

In 2014, a Texas state court ruled Moore intellectually disabled, basing its evaluation on current medical standards. But the Texas Court of Criminal Appeals said the lower court erred by using those standards instead of the state’s test.

The Court of Criminal Appeals established the state’s method for determining intellectual disability in ex parte Briseno after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 as well as several other factors to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on those factors, that Moore doesn’t have the disability.

Though the original question posed to the U.S. Supreme Court asked if Texas can prohibit courts from evaluating intellectual disability based on current medical standards, the arguments Tuesday focused more on Briseno — a point that irked Chief Justice John Roberts.

“Then why didn’t you say that?” Roberts exclaimed, when Sloan agreed the argument was against Texas’ ruling that states must use Briseno instead of current medical standards.

After the procedural upset, Roberts remained mostly silent. Justice Samuel Alito didn’t seem troubled by Texas’ manner of defining the disability, but Justices Sonia Sotomayor and Elena Kagan were openly critical of Briseno.

In part, Briseno defines those with intellectual disability as having a low IQ and poor adaptive functioning since childhood. It also lists several factors to help judges determine adaptive functioning in borderline cases, which is where the crux of the argument focused Tuesday.

“The [Court of Criminal Appeals] said the clinical standards are too subjective and don’t reflect what Texans think,” said Kagan. “Briseno makes it very clear that you’re supposed to rely on what the neighbor said and what the teacher with absolutely no experience with respect to intellectual disabilities said.”

Texas Solicitor General Scott Keller argued the Briseno factors are “discretionary,” though the liberal justices seemed skeptical.

When Keller said that Briseno factors are not used to limit the number of individuals who could be labeled intellectually disabled, Justice Anthony Kennedy asked, “But isn’t that the effect?”

One of the more controversial aspects of the Briseno factors is the reference to Lennie, a character from John Steinbeck’s novel "Of Mice and Men," in describing how to define the condition.

“Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt,” the court’s opinion in Briseno stated. “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?”

Though Keller has repeatedly said the “Lennie” comment was an aside and is not used in the test, it still grabbed Sotomayor's attention. In the Court of Criminal Appeals' ruling on Moore, it stated a state expert claimed the man had some adaptive functioning with money and work because he mowed lawns.

“Lennie was working on a farm; how is that different than mowing a lawn?” Sotomayor asked.

Breyer remained mostly quiet in reference to Briseno but seemed concerned with how the court could set further restrictions for the states.

“If you have some view that the law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases,” he said, adding he suspected there was no such thing. 

In his petition, Moore is asking the court to reverse the Court of Criminal Appeals' ruling and toss out his sentence. If the court rules in his favor, it could set further restrictions on how states can legally determine intellectual disability.

Texas is asking that the court affirm the state court’s ruling or, at the very least, remand the case back to the Court of Criminal Appeals to further review current medical standards, instead of setting national precedents.

“I know better than to try to read tea leaves, but we think the arguments went really well,” Keller said on the front steps of the court building after the hearing.


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