Civil and Human Rights

U.S. Supreme Court to Revisit Death Penalty Issues in Texas Cases

By Tony Mauro

It may not trigger a complete re-examination of capital punishment, but the U.S. Supreme Court on Monday agreed to hear two Texas death row appeals next term that raise issues of race, intellectual disability and prolonged imprisonment.

Without comment, the court agreed to review Bobby Moore v. Texas and Duane Buck v. Stephens, both appeals brought by African-American long-term inmates on the state’s death row.

“The fact patterns of the particular cases should be disturbing to all of the justices, but we simply don’t know whether the justices will use the cases to go beyond mere course correction to a full-blown re-examination” of the constitutionality of capital punishment, said Elizabeth Wydra, president of the Constitutional Accountability Center.

Moore, convicted and sentenced to death in 1980 for murdering a grocery store employee during a robbery in Houston, was placed in solitary confinement in 2001.

In subsequent appeals, he claimed he was intellectually disabled under the standard articulated by the high court in 2002 in Atkins v. Virginia. The Texas Court of Criminal Appeals rejected Moore’s appeal, adhering to its own 1992 standard. (Since the 2014 case Hall v. Florida, a follow-up to Atkins, the Supreme Court has stopped using the term “mental retardation,” replacing it with “intellectual disability.”)

Moore’s petition asked the court to rule on two issues: the constitutionality of the Texas standard, and whether his confinement for 36 years amounted to “cruel and unusual” punishment banned by the Eight Amendment.

The court’s order granting review issued Monday at 9:30 a.m. indicated the court would take up both issues, but later in the morning it issued a revised order stating its inquiry would focus on the Texas standard, not the issue of prolonged confinement.

Partner Clifford Sloan of Skadden, Arps, Slate, Meagher & Flom, counsel of record on the petition, declined comment on the court’s narrowing of the case. Skadden became part of Moore’s legal team through associate Luke Varley, who began working on the case in 2011 at Amicus, a United Kingdom organization that gives legal help to U.S. death row inmates.

Taking up the issue of too-long imprisonment “would have had a broader systemic impact, but this court has been deciding death penalty issues narrowly,” said Robert Dunham of the Death Penalty Information Center.

In his 2015 dissent in Glossip v. Gross, Justice Stephen Breyer included the length of death row confinement as one of the factors he said should prompt a review of the constitutionality of the death penalty.

In the other Texas case, Duane Buck was sentenced to death in 1997 after being convicted in the murder of two women the year before. A defense expert witness in the trial testified that because of Buck’s race, he was more likely to be dangerous in the future—a necessary finding before the death penalty can be imposed.

The Texas brief opposing review said calling the witness was a “reasoned strategy decision” by Buck’s lawyers.

Buck’s Supreme Court appeal, filed by the NAACP Legal Defense and Educational Fund, said his case “raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination.”

On appeal Buck claimed ineffective assistance of counsel, but U.S. Court of Appeals for the Fifth Circuit rejected the claim as “unremarkable.”

Christina Swarns, litigation director for the NAACP Legal Defense & Educational Fund, said Monday, “The Supreme Court’s decision to accept Mr. Buck’s appeal is an important step toward restoring public confidence in the integrity of the courts. “Justice can only be served in this extraordinary case of racial bias by a new sentencing hearing free of inflammatory, inaccurate stereotypes.”

More from Civil and Human Rights