The major news out of Moore v. Texas, the Supreme Court’s death-penalty decision announced Tuesday, is that all eight of the current justices rejected a crude list of “factors” the Texas courts had evolved to tell when a criminal defendant can be executed despite evidence that he or she is intellectually disabled. (“Intellectual disability,” or “ID,” is the condition courts until recently called “mental retardation.”)
These factors include questions like “Did those who know the person best during the developmental stage—his family friends, teachers, employers, authorities—think he was mentally retarded at that time and if so, act in accordance with that determination?”, “Can the person hide facts or lie effectively in his own or others’ interests?”, and (my favorite) “[Did the commission of [the] offense require forethought, planning, and complex execution of purpose?” The “factors” represent—and were designed to represent—a kind of grotesque “a consensus of Texas citizens” view of intellectual disability, offering multiple ways to find that a given defendant is, whatever the doctors and psychiatrists might say, actually a cunning criminal deserving of death.
But, as the Supreme Court has pointed out before, intellectual disability is not left to the judgment of the neighbors; it is a complex medical and psychiatric condition diagnosed by a specialized set of clinical criteria. The stakes in an evaluation are high: under a 2002 case called Atkins v Virginia, executing an intellectually disabled defendant is a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Three years ago, in Hall v. Florida, the Supreme Court told Florida courts that they could not change the statistical standards governing IQ scores in order to avoid a clinical diagnosis of ID.
As noted, all the justices on Tuesday rejected what Texas called the “Briseno factors,” named after a 2004 case in which the state Court of Criminal Appeals interpreted Atkins as requiring it to “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.”
This “folks ‘round here” standard is almost a laughable misreading of the Eighth Amendment, which applies to the states through the Fourteenth Amendment. The aim of the amendment was and is not to empower local majorities to define “cruel and unusual”—quite the reverse. (See the command that “no state shall ... deprive any person of life, liberty, or property, without due process of law.”) Eighth Amendment cases seek to divine what Chief Justice Earl Warren in 1958 called “the evolving standards of decency that mark the progress of a maturing society.” Texas is part of that society, not a separate realm.
On Tuesday, a five-justice majority told Texas that its courts must not only give up the Briseno factors, but must also apply a standard “informed” by current clinical standards to diagnose ID. That means that, as medical knowledge advances and clinical standards evolve, courts are not free to ignore those changes.
Moore is an appeal by Bobby James Moore, who murdered a store clerk in 1980. He was captured soon after and sentenced to death; 15 years later, his death sentence was set aside because his lawyer had been ineffective. After a new hearing, he was again sentenced to death in 2001. A year later came Atkins, and the rule that the intellectually disabled cannot be executed.
Moore filed a habeas corpus petition with a Texas court, arguing that he fit under the Atkins rule. After hearing two days’ worth of evidence from Moore’s family, his former lawyer, and mental-health experts, the judge at the hearing concluded that Moore was intellectually disabled within the meaning of Atkins and could not be executed. The judge based that finding in part on the latest clinical standards, including a 2010 handbook by the American Association on Intellectual and Developmental Disabilities and the 2013 Diagnostic and Statistical Manual of Mental Disorders-V of the American Psychiatric Association.
The state appealed to the Court of Criminal Appeals (called the “CCA”), which is, under Texas law, the ultimate fact-finder in habeas cases. That court set aside the habeas ruling, in large part because the lower court had used the newest medical standards rather than the old medical standards applied in 2004 by Briseno. Those standards included earlier editions of the clinical manuals, which evaluated patients differently. Briseno, the appeals court said, froze the law of ID in Texas, including the clinical standards, until the Texas legislature decided to change it. And beyond clinical data, the CCA said, the habeas court was also required to filter any claim of intellectual disability through the “Briseno factors” mentioned above—which constitute an entirely different, entirely non-medical, definition of intellectual disability.
As noted, the justices all agreed that Briseno had to go. In the majority opinion, Justice Ruth Bader Ginsburg wrote that the “factors ... are an invention of the CCA untied to any acknowledged source.” Thus, “they may not be used ... to restrict qualification of an individual as intellectually disabled.” In his dissent, Chief Justice John Roberts agreed: the “factors are an unacceptable method of enforcing the guarantee of Atkins, and that the CCA therefore erred in using them to analyze adaptive deficits.”
There the agreement ends, however. Ginsburg, joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, went on to demolish the rest of the CCA’s factual findings. Though Ginsburg is too polite to say so, a reader will be astonished: the Texas court looked at the record amassed in the habeas hearing and simply came up with reasons to disregard all the evidence that suggested Moore really is intellectually disabled. True, as Ginsburg notes:
At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Often, he was separated from the rest of the class and told to draw pictures. Moore’s father, teachers, and peers called him “stupid” for his slow reading and speech. After failing every subject in the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trash cans, even after two bouts of food poisoning.
The Texas court explained that these fact actually disproved Moore’s claim, since they could be causes of his poor intelligence rather than symptoms of genuine ID.
True, too, a number of IQ tests scored Moore below 70, a line that is used to separate disability for normal intelligence; but the CCA discarded five of the tests for various reasons, leaving two scores of 74 and 78. The first score is a problem, because the standard error of measurement indicates a “true” score between 69 and 74, meaning a chance that even that score indicated ID. The CCA explained that away on the grounds that Moore was depressed and not really trying hard on the test that day; so the score was probably not at the lower end of the standard error, and thus didn’t help establish ID either.
The combination of Briseno and the Texas court’s determined embrace of outdated clinical standards doomed its conclusion, Ginsburg wrote. State courts aren’t required to follow every change in clinical manuals, but “[t]he medical community’s current standards supply one constraint on States’ leeway in this area.” Instead, “[b]y rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in Briseno, ... the CCA failed adequately to inform itself of the ‘medical community’s diagnostic framework.’ Because Briseno pervasively infected the CCA’s analysis, the decision of that court cannot stand.”
Roberts’s dissent (joined by Justices Clarence Thomas and Samuel Alito) argued that even discarding Briseno, the CCA opinion cited plenty of good reasons to reject the evidence of disability. First, current medical standards, while important, often change and should not be binding on state courts: “judges, not clinicians, should determine the content of the Eighth Amendment.” Second, the CCA, as fact-finder, was legally empowered to evaluate all the evidence, he wrote; that evaluation was not fatally tainted by Briseno and thus should receive deference. “Confronted with dueling expert opinions” Roberts added, “the CCA resolved the dispute before it by accepting the testimony of the expert it deemed most credible.” He would not reject that determination “based on my own interpretation of a few sentences excised from medical texts.”
For the second time in three years, a majority of the justices has sent word to the death belt that it is serious about the Atkins rule against executing defendants with ID. Medical standards are presumptively to be followed, Moore suggests. But if history is a guide, there will be further determined efforts to apply the local standard many of us grew up with—“He don’t look so all-fired disabled to me"—and a few justices sympathetic to those efforts.