Written By: Drew Panella

Member, American Journal of Trial Advocacy

On March 28, 2017, the United States Supreme Court gave a Texas death-row inmate an opportunity for a new sentence after ruling that a state court misapplied medical standards, which led to the determination that the inmate was not intellectually disabled and therefore was eligible to be executed.^[1] The decision concerned whether Bobby James Moore, the inmate who was sentenced to death, was intellectually disabled and whether his death sentence was constitutional.^[2]

The Supreme Court considered this life-or-death issue back in 2002, in Atkins v. Virginia.^[3] The Court found that the Eighth Amendment’s exclusion of cruel and unusual punishment prohibits the intellectually disabled from being executed.^[4]  No uniform approach was provided for determining intellectual disability; the States were given discretion in defining intellectual disability.^[5] However, the Court cautioned that this discretion was not to be “unfettered.”^[6] In Hall v. Florida,^[7] the Court renounced a strict intellectual disability rule that excluded anyone with an IQ score above 70, and guided the focus of determining who is intellectually disabled to be “informed by the medical community’s diagnostic framework.”^[8] The central issue in Moore’s case was whether the Texas Court of Criminal Appeals (CCA) properly relied on a 1992 framework^[9] rather than intellectual disability guides currently used in the medical community.^[10]

Bobby James Moore was convicted and sentenced to death for shooting and killing a grocery store clerk in a 1980 robbery.^[11] Moore petitioned for a state writ of habeas corpus.^[12] In applying current medical standards, the state habeas court found that Moore was intellectually disabled based on reasons such as his academic failure, childhood abuse and suffering, and his inability at age 13 to tell time and understand basic principles.^[13] The CCA rejected the habeas court’s recommendation and relied on the CCA’s own precedent set in Ex parte Briseno, which used standards and definitions that dated back to 1992 to determine intellectual disability.^[14]

In a 5-3 decision, with the opinion written by Justice Ruth Bader Ginsberg and joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the Supreme Court found the CCA’s ruling erroneous in several ways, vacated the ruling, and remanded the case back to the Texas court.^[15] The Supreme Court outlined three primary reasons, or errors on behalf of the CCA, for vacating the ruling.

The Supreme Court first knocked the CCA for taking a strict approach in concluding that Moore’s IQ test established that he is not intellectually disabled.^[16] The CCA strayed from Hall which explicitly states “when a defendant’s IQ test score falls within the . . .  margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”^[17] Moore had an IQ test score of 74, however, when adjusted for the standard error of measurement, his scored ranged from 69 to 79, the lower end of that range falling below the required IQ to establish intellectual disability.^[18] The CCA needed to consider other evidence of intellectual functioning, which is where the CCA made its next error.

In determining Moore’s adaptive functioning, the CCA departed from modern clinical standards in order to cling to court-created standards.^[19] In making an adaptive functioning determination for intellectual disability, “the medical community focuses the adaptive-functioning inquiry on adaptive deficits.”^[20] However, the CCA deviated from this and emphasized Moore’s perceived strengths instead of focusing on his deficits.^[21] The CCA continued to make matters worse by relying on seven superseded Briseno evidentiary factors.^[22] Outside of the sole use for death penalty consideration, the Briseno factors are not even used in Texas to determine intellectual disability and have been replaced by the latest editions of the medical community’s diagnostic framework.^[23] The court sharply posited “Texas 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.”^[24] Ultimately, the Briseno factors recommend that a mildly intellectually disabled person can be subject to execution, but the Constitution precludes anyone who is intellectually disabled from death penalty persecution.^[25]

While this decision is a win for intellectually disabled death-row inmates across the state of Texas, and potentially nationwide, questions will likely continue to arise as litigation passes through the States looking for guidance on how to determine intellectual disability. Even though States are provided discretion on how to make that determination, disregarding current medical standards will not be tolerated and will be deemed inconsistent with the Eighth Amendment. 

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^[1] Adam Liptak, Texas Used Wrong Standard in Death Penalty Cases, Justices Rule, N.Y. Times (Mar. 28, 2017). https://www.nytimes.com/2017/03/28/us/politics/texas-death-penalty-supreme-court-ruling.html?_r=0.

^[2] Moore v. Texas, 137 S. Ct. 1039, 1044 (2017).

^[3] 536 U.S. 304 (2002).

^[4] Id. at 321 (citing Ford v. Wainwright, 477 U.S. 399, 405 (1986).

^[5]Atkins v. Virginia, 536 U.S. 304, 317 (2002); Hall v. Florida, 134 S.Ct. 1986, 1998 (2014).

^[6] Hall, 134 S.Ct. at 1998.

^[7] 134 S.Ct. 1986 (2014).

^[8] Id. at 2001-02. (“Florida’s rule is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, [the] law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning.”).

^[9] Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) (employing definitions of, and standards for assessing, intellectual disability set out by the 1992 edition of the American Association on Mental Retardation (AAMR) manual).

^[10] Moore, 137 S.Ct. at 1044.

^[11] Id.

^[12] Id. at 1045.

^[13] Id.

^[14] Id. at 1046.

^[15] Id. at 1043.

^[16] Id. at 1050.

^[17] Hall, 134 S.Ct. at 2001.

^[18] Moore, 137 S.Ct. at 1049.

^[19] Id. at 1050; See Brumfield v. Cain, 576 S.Ct. 2269, 2281 (2015) (“[I]ntellectually disabled persons may have ‘strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.’”).

^[20] Moore, 134 S.Ct. at 1050 (citing AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports 47 (11th ed. 2010) (“significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills”)).

^[21] Id. at 1051.

^[22] Id. at 1051-52 (“Skeptical of what is viewed as ‘exceedingly subjective’ medical and clinical standards, the CCA in Briseno advanced lay perceptions of intellectual individuals. Briseno asks, for example, ‘Did those who knew the person best during the developmental stage—his family, friends, teachers, employers, authorities—think he was mentally retarded at the time, and, if so, act in accordance with that determination?’”)(citing Briseno, 135 S.W.3d at 8.).

^[23] Id. at 1052.

^[24] Id.

^[25]Id. at 1051 (“By design and operation, the Briseno factors ‘create an unacceptable risk that persons with intellectual disability will be executed.’”) (quoting Hall, 134 S.Ct. at 1990)).