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.