Civil and Human Rights

Texas Defends Mental Standards in SCOTUS Death Penalty Case

By Lana Shadwick

Another Texas death penalty case was argued at the United States Supreme Court this week. The two questions presented was whether executing someone 35 years after the imposition of a death sentence, and allegedly using outdated medical standards to determine intellectual disability, is cruel and unusual punishment prohibited by the U.S. Constitution. The Eighth Amendment prohibits executing those who are intellectually disabled.

Texas Attorney General Ken Paxton and Texas Solicitor General Scott A. Keller were in Washington, D.C. with Keller arguing the case on behalf of the State of Texas. The transcript of the oral argument is attached below.

Marc Rylander, spokesman for the Office of the Texas Attorney General told Breitbart Texas after the oral argument, “Texas’ standard for intellectual disability is constitutional and fits well within the national consensus among states about how to define intellectual disability.”

The petition for writ of certiorari asking the Supreme Court to hear the case of Bobby James Moore v. Texas (#15-797) was filed on December 15, 2015.

Moore was convicted of capital murder and sentenced to death in 1980 for shooting a 70-year-old grocery store clerk in Houston while he was committing or attempting to commit robbery.

The majority of the Texas Court of Criminal Appeals noted in its opinion that the Supreme Court has determined that the execution of the intellectually disabled violates the Eighth Amendment “but left it to the States to develop appropriate ways to enforce the constitutional restriction.”

Judge Elsa Alcala filed a dissenting opinion at the time stating, “it is time for Texas to reevaluate the decade old, judicially created standard in Ex parte Briseno in light of a shift in the consensus of the medical community regarding what constitutes intellectual disability, and in light of the Supreme Court’s recent holding in Hall v. Florida indicating that courts are required to consider that consensus in assessing intellectual-disability claims.”

As stated in the majority’s opinion of the Texas Court of Criminal Appeals, Briseno adopted the definition of intellectual disability stated in the ninth edition of the AAMR manual published in 1992, and the “similar definition” of intellectual disability contained in the Texas Health and Safety Code.

Washington D.C. lawyer Clifford M. Sloan, arguing on behalf of the Petitioner, told the Court during oral argument that “Texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards. It relies on harmful and inappropriate lay stereotypes.” He urged “that the entire category of the intellectually disabled, every person who is intellectually disabled, is exempt from execution under the Eighth Amendment.”

Sloan argued that the Texas Court of Criminal Appeals, the highest criminal appellate court in Texas, used a standard established in 1992 and prohibited the use of current medical standards. He told the Court that the Texas Court of Criminal Appeals “said that the State habeas trial court erred by employing the current standards.”

Saying she wanted to “cut to the chase,” Justice Sotomayor asked Mr. Sloan: “Was the criminal court of appeals using any clinical standard, any medical clinical standard?” He told her no.

Justice Sotomayor said later during Petitioner’s presentation that the CCA had found that Mr. Moore did not meet two prongs–he could not prove that he was clinically intellectually disabled, and that his IQ was higher than what was generally recognized clinically. Sloan maintained that both prongs were in “very sharp conflict” with clinical guidance generally, and “especially with current clinical standards.”

Justice Ginsberg fired off and her statement is a strong indication about what she might be thinking about the issue. She said, “There is no doubt about what the Texas court said. It’s marching orders for Texas courts. It said the habeas judge erred by employing current clinical definition of intellectually disabled, there in that respect, rather than the test we established in Briseno. The test we established in Briseno is — is stated sharply and clearly as the test that must be applied by Texas courts.”

Mr. Keller urged that Petitioner argued in their reply brief that there is no material difference between the language in Texas’ standard and the current clinical frameworks, and the Texas Court of Criminal Appeals applied the factors in the Briseno case which are in the Texas Court’s precedents.

Part of the discourse between the Texas Solicitor General and individual justices on the Court was whether Texans would agree that the Petitioner should be exempt from the death chamber, and whether you try to get standards to reflect that, or rather, you look at the consensus of psychiatrists and psychologists. There was also a concern on whether looking at citizen standards “would produce nonuniformity among 50 states or among the many states that have the death penalty.”

The case has garnered the attention of mental health and other organizations. Amici curiae briefs have been filed by the: Constitutional Accountability Center; The Constitution Project; National Religious Campaign Against Torture; American Civil Liberties Union (ACLU); American Academy of Psychiatry and the Law; American Association on Intellectual and Developmental Disabilities; International Organizations Interested in Medical Expertise, Psychiatry, and Criminal Justice; International Law and Human Rights Institutes, Societies, Practitioners and Scholars; the American Psychological Association and the Criminal Justice Legal Foundation; and the American Bar Association.

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