Moore v. Texas: US Supreme Court Enforces Constitutional Prohibition Against Executing Intellectually Disabled Defendants

A recent Supreme Court judgment in the US is being hailed as a triumph by death penalty abolition advocates. Moore v. Texas has enforced the prohibition against the execution of intellectually disabled defendants, by ruling against the state of Texas’ outdated methods of assessing intellectual disabilities – that were based on ‘stereotypes, fears, or myths’. In this guest blog, Robin M. Maher gives an overview of the precedent case and why it is reason for celebration.

It has been 15 years since the United States Supreme Court decided Atkins v. Virginia¹, the landmark decision finding that it was unconstitutional to execute defendants with an intellectual disability. 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. But it gave the states no guidance about how to substantively and procedurally implement its decision, acknowledging the potential for ‘serious disagreement… in determining which offenders are in fact [intellectually disabled]’.²

Moore v. Texas involved standard procedures used by the state of Texas to define intellectual disability. In 2004, Texas adopted the definitions and standards from the 1992 edition of the American Association on Mental Retardation³ Manual. It also adopted seven evidentiary factors that became known as the Briseño factors⁴. 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’.⁵

Texas’ use of a ‘we know it when we see it’ approach to identify intellectual disability was as bewildering as it was dangerous. Long criticised by legal, medical, and mental health professionals, the Briseño factors had no diagnostic legitimacy. 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 was again sentenced to death. While on appeal, Atkins v. Virginia 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.

The evidence established that Moore had significant mental and social difficulties which had begun at an early age. At age 13, he lacked a basic understanding of the days of the week, the months of the year and the seasons, and he could scarcely tell the time. Moore’s father, teachers and peers called him ‘stupid’ for his slow reading ability and speech. After failing school and being cast out of his home, Moore was forced to live on the streets and find food in trashcans.⁶

In its review of Moore’s claim, the Texas court consulted current medical diagnostic standards and the generally accepted diagnostic definition of intellectual disability.⁷ 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.⁸

The Texas appellate court reversed this decision. 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 subaverage 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 many problems. Finally, the Texas appellate court examined each of the seven Briseño factors and found that they ‘weigh[ed] heavily’ against the finding that Moore had demonstrated intellectual disability.⁹

Last week, the United States Supreme Court vacated the Texas appellate court’s decision. Justice Ginsburg, writing for the five-person majority, was critical of many aspects of the Texas approach and specifically disapproving of the Briseño factors because they were not tied to any acknowledged, credible source. ‘Texas,’ Justice Ginsburg wrote, ‘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…The Briseño factors are an invention…and ‘create an unacceptable risk that persons with intellectual disability will be executed.’”¹⁰

Three members of the Supreme Court dissented: Chief Justice Roberts and Justices Thomas and Alito. Although they agreed that the Briseño factors were ‘an unacceptable method of enforcing the guarantee of Atkins’, they disagreed with the majority’s reliance on ‘medical consensus about intellectual disability’.¹¹ Among other objections, Chief Justice Roberts argued that ‘judges, not clinicians, should determine the content of the Eighth Amendment’.¹²

The decision in Moore makes clear that the flexibility given to states to implement Atkins has limits. As Justice Ginsburg wrote: ‘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.’¹³

Moore will now receive a new sentencing hearing, and his intellectual disability will be assessed without the use of outdated stereotypes, fears or myths.

Moore will now receive a new sentencing hearing, and his intellectual disability will be assessed without the use of outdated stereotypes, fears or myths. Before this case was decided however, the Briseño factors were used in dozens of cases. It is estimated that Texas has executed 30-40 people with strong claims of intellectual disability in recent years.¹⁴ Marvin Wilson, who had an IQ of 61 and ‘sucked his thumb into adulthood’, was executed in 2012.¹⁵ Elroy Chester, who had an IQ of 68 and could not name all the months of the year, was executed in 2013.¹⁶ Robert Ladd, whose IQ was measured at 67 as a teenager, was executed in 2015. For Moore and other intellectually disabled prisoners still on Texas’ 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.

More information

Download the endnotes here (PDF)

Photo credit: Supreme Court of the United States, Phil Roeder