Determination of Intellectual Disability in Death Penalty Cases

Facts of the Case

In April 1980, Bobby James Moore, at the age of 20, and two accomplices attempted to rob a grocery store. In the course of the robbery, Mr. Moore shot and killed a clerk. He was convicted and sentenced to death in July 1980. Over the next 35 years, Mr. Moore engaged in a legal battle to overturn his death sentence. In 1995, a federal habeas court vacated the death sentence because of ineffective assistance of counsel, which was affirmed by the Fifth Circuit Court of Appeals in 1999. After a second sentencing hearing, Mr. Moore again received the death penalty in 2001, which the Texas CCA affirmed.

In 2014, Mr. Moore's case was reviewed in the state habeas court regarding his intellectual functioning. Numerous individuals testified and submitted affidavits, including Mr. Moore's family, prior counsel, and court-appointed mental health experts. The court found that Mr. Moore had extensive mental and social difficulties that began at an early age, including an inability to understand the days of the week, tell time, or demonstrate basic principles of math by the age of 13. He failed all his ninth-grade courses. He subsequently dropped out of school, was kicked out of his home, and lived on the streets. The state habeas court used current medical diagnostic standards in determination of Mr. Moore's intellectual disability, including the 11th edition of the American Association on Intellectual and Developmental Disabilities (AAIDD-11) clinical manual (Schalock RA, Borthwick-Duffy SA, Bradley VJ, et al: Intellectual Disability: Definition, Classification, and System of Supports (ed 11). Washington, DC: AAIDD, 2010), the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (Arlington, VA, American Psychiatric Association Publishing, 2013) and the generally accepted diagnostic definitions of intellectual disabilities. This included three elements: (1) intellectual-functioning deficits (IQ score of 70 with standard error of 5), (2) adaptive deficits, and (3) deficits developed before age 18. Mr. Moore met the criteria for intellectual disability according to these standards because he had an IQ score average of 70 and significant adaptive deficits noted by mental health experts. The state habeas court thus recommended that the CCA “reduce his sentence to life in prison or grant a new trial on intellectual disability” (Moore, p 1046). The CCA disagreed and rejected these recommendations citing Ex parte Briseno, 135 S.W. 3d 1 (Tex. Crim. App. 2004), which established guidelines for determination of intellectual disability in 1992. The Briseno court concluded there were seven factors to consider for the determination of intellectual disability. The CCA indicated that the state habeas judge erred by using the current clinical guidelines instead of Briseno as Atkins v. Virginia, 536 U.S. 304 (2002), “left it to the States” to determine how best to enforce the limitation of execution of the mentally disabled, and Texas legislation had not displaced Briseno. Referencing the nonclinical Briseno factors, the CCA held that Mr. Moore was not intellectually disabled for the purposes of execution. The U.S. Supreme Court granted certiorari to evaluate whether the CCA's use of Briseno and disregard of current medical standards complied with Eighth Amendment and prior Supreme Court precedents.

Ruling and Reasoning

Justice Ruth Bader Ginsburg wrote the majority 5-to-3 opinion. The Court reviewed previous findings from Atkins and Hall v. Florida, 134 S.Ct. 1986 (2014). In Atkins, the Court held execution of intellectually disabled persons unconstitutional under the Eighth Amendment. In Hall, the Court ruled “that a State cannot refuse to entertain other evidence of intellectual disability when a defendant has an IQ score above 70” (Moore, p 1048). While the Court at that time left the details of enforcement for the states to determine, they noted that the determination of intellectual disability must be within clinical diagnostic standards (which, in this case, included the DSM-5 and the AAIDD-11). The Court determined that the CCA erred in their decision in several areas. Hall instructed that the courts must consider a test's standard deviation for error and the range reflected by that deviation. For IQ, the standard error of measurement is 5; therefore, Mr. Moore's IQ score of 74 should have been considered to be in the range of 69 to 79. The CCA followed testimony that the lower score may have reflected external factors at the time of testing, such as depression, which may have artificially lowered the score. With a score near 70, the Court requires that a person's adaptive functioning then be evaluated to determine intellectual disability. The Court noted that the CCA considered Mr. Moore's adaptive functioning in a manner that did not conform to current medical guidelines. In particular, the CCA “overemphasized Moore's perceived adaptive strengths” (Moore, p 1050), and that these strengths outweighed his numerous adaptive deficits. The Court indicated the CCA erred in their assertion that his adaptive impairments were not due to a personality disorder, in that co-occurring mental illness and developmental disabilities are common in intellectual disabilities and the occurrence of one does not rule out the presence of the other.

In Hall, the Court stated that the reliance on the Briseno factors led to an “unacceptable risk that person with intellectual disability will be executed” (Hall, p 1990). Indeed, the Court noted that the Briseno factors relied on amateur assessments and understanding of intellectual disability, as opposed to expert opinion, such as considering who society would consider to be intellectually disabled. The Court noted that the Briseno factors were rarely used in other courts and that even Texas did not apply Briseno in other circumstances outside of capital cases. The Court reported that the state habeas court used current medical guidelines in their conclusion that Mr. Moore was intellectually disabled and that the death penalty could not be enforced, which the CCA disregarded in favor of outdated 1992 guidelines and the Briseno factors. For these reasons, the Court vacated the judgment of the Texas Court of Criminal Appeals, and the case was remanded for further proceedings “not inconsistent with this opinion” (Moore, p 1053).

Dissent

Chief Justice John Roberts wrote the dissent for this decision and was joined by Justice Clarence Thomas and Justice Samuel Alito. Chief Justice Roberts cited several disagreements with the Court majority in this case. Of note, the he pointed to the Court's precedents that what is considered cruel and unusual relied on “judicial judgment about societal standards of decency, not a medical assessment of clinical practice” (Moore, p 1058). The dissent noted that the majority opinion lacked guidance for determination of intellectual disability; on the one hand allowing for flexibility, but at the same time stating that the courts could not disregard current medical standards. He observed that the CCA did not disregard current medical standards. He noted the “CCA considered clinical standards and explained why it decided that departure from those standards was warranted” in their determination that Mr. Moore was not intellectually disabled and was thus eligible for the death penalty (Moore, p 1058).