Though it cited the 1992 clinical standard, the Texas court also cited as law an idiosyncratic standard it had developed itself after Atkins. In that 2004 case, In re Briseno, the court had said it was all very well for mental-health professionals to “define mental retardation broadly to provide an adequate safety net for those who are at the margin and might well become mentally-unimpaired citizens if given additional social services support.” But that definition, it said, didn’t bind Texas courts, who are responsible to public opinion in the state, not psychiatric knowledge.
We, however, must define that 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. Most Texas citizens might agree that [John] Steinbeck’s Lennie [in his novel, Of Mice and Men,] should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. 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? Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a “mental retardation” bright-line exemption from our state’s maximum statutory punishment?
The answer to the last question, as I read the Supreme Court’s caselaw, is somewhere between “Yes” and “Look, hoss, what part of ‘yes’ do you not understand?” Hall requires that legal judgments be “informed” by clinical ones—it doesn’t empower judges to decide that their voters find psychiatrists irrelevant.
Even more remarkable is the state court’s phrasing of the Eighth Amendment query as whether “a consensus of Texas citizens” would find a given defendant suitable for the application of the Atkins rule. The Eighth Amendment, last time I checked, was a part of the U.S. Constitution, and there’s no “That’s fine up there in Yankeeland but don’t signify down here” exception in that document.
This kind of “you’re not serious” case is a subtle but significant challenge to the Supreme Court’s authority. Last term’s abortion case, Whole Woman’s Health v. Hellerstedt, concerned the “undue burden” standard the Court has announced for regulations of abortion. The Texas legislature, and the Fifth Circuit Court of Appeals, had approved a sweeping set of restrictions that would have reduced abortion availability drastically in the state. They were labeled as “health regulations,” but the evidence showed the new rules would have had no significant health advantage. The appeals court had said, wink wink nudge nudge, that if a legislature called a law a health law, then it didn’t matter how little benefit it brought or how hard it made getting an abortion.
The Court smacked down that challenge. Will it do the same with the Of Mice and Men rule?