To read on The Catholic World Report website:
Supreme Court appears skeptical of Texas’ death penalty standards
December 2, 2016
Washington D.C., Dec 2, 2016 / 02:11 pm (CNA/EWTN News).- The Supreme Court heard oral arguments Tuesday in a death penalty case that could determine the fate of a man whom lawyers say is intellectually disabled.
The legal issue in question, said Robert Dunham, executive director of the Death Penalty Information Center, is “did Texas violate the Eighth Amendment when it disregarded the national consensus definition” of intellectual disability and “substituted a non-clinical” standard in its place?
In Moore v. Texas, the petitioner Bobby James Moore was convicted of robbery and murder in Texas in 1980, after killing a convenience store employee in a robbery attempt. He was convicted again in a retrial in 2001.
He is challenging the state’s criminal appeals court’s ruling that he merits the death penalty. His lawyers claim that by clinical standards, he is intellectually disabled and thus protected from capital punishment.
The Supreme Court previously ruled in Atkins v. Virginia that the Eighth Amendment, which prohibits “cruel and unusual punishment,” protects intellectually disabled persons from being put to death.
Texas’ criminal appeals court, however, had ruled that Moore should be judged by the standards that existed at the time of his 2001 conviction, not by the most recent clinical standards.
Moore’s disability was determined by the state’s 2004 Briseno decision, which established additional “Briseno factors” to determine if someone was intellectually disabled, and thus ineligible for the death penalty.
“For the most part,” Dunham explained, “states simply follow the clinical definitions [of intellectual disability] and then they have their own procedural rules for what evidence you can present and what the standard of proof is.”
However, he added, “a number of states” then “came up with very restrictive rules on proving intellectual disability.” And, “in a couple of instances, they deviated from the clinical definitions of intellectual disability in significant ways.”
Texas is one of these cases, he argued.
The “national consensus” proof of intellectual disability relies on three prongs: a “significantly sub-average intellectual function,” proof of “adaptive deficits,” and whether the “age of onset” was before age 18, Dunham explained.
However, with the “Briseno factors” that Texas added to this test, there are additional questions to the three-pronged standard like whether someone’s neighbors or teachers think them to be disabled, if they are able to lie, and if they are able to plan out a crime.
Scott Keller, the Texas Solicitor General representing the state before the Supreme Court, told the justices that these questions are not discriminatory, but are meant to provide “more concrete terms” for determining if someone met one of the three prongs – “limitations in adaptive functioning” – of the intellectual disability test.
Dunham, however, claimed that these questions utilize a “non-clinical standard” which asks “a bunch of stereotypical questions a layperson would ask to determine intellectual disability.”
Some of the questions are “derived from Lenny of ‘Of Mice and Men,’” a fictional character in a John Steinbeck novel, he added.
Ultimately, he claimed, these questions “appear to be a gloss that Texas is placing over the clinical definition” of intellectual disability. Thus, the state is using a non-clinical standard to ultimately determine who will be executed, he said.
Both the American Psychological and Psychiatric Associations agree, stating in their brief supporting Moore’s case that “there is a consensus among the mental health professions about how properly to diagnose persons with intellectual disability. Texas’ approach to intellectual disability is inconsistent with this consensus.”
In a recent death penalty case, Hall v. Florida, the state of Florida had set an IQ score of 70 as a benchmark in determining if someone was intellectually disabled. However, “the clinical community generally considers an IQ of 75 or below to be a qualifying score,” Dunham noted.
Thus, he said, the Supreme Court ruled that Florida “deviated from the established national consensus,” and “did so in a way that allows the execution of individuals who, under clinical practice, would be intellectually disabled,” violating both its ruling in Atkins and the Eighth Amendment.
Texas has done a similar thing, he said. In adding this “non-clinical standard” of the Briseno factors as an additional burden of proof that someone is intellectually disabled, “Texas has deviated from the clinical consensus definition of what constitutes an adaptive deficit,” he claimed.
He said the state “includes as eligible” for the death penalty “a range of people who would be deemed as intellectually disabled” under the commonly-accepted clinical method.
For instance, the state in 2012 used the Briseno factors and determined that Marvin Wilson, a man who scored a 61 on an IQ test, was eligible for the death penalty.
And, Dunham added, Texas only uses the Briseno Factors in death penalty cases. For other cases, like with applications for Social Services, Texas relies upon other clinical methods.