While still insisting that state governments do not have to follow exactly all of the medical community’s standards for defining intellectual disability of criminal suspects, a divided Supreme Court on Tuesday narrowed even further states’ option to create their own standards when deciding who is eligible to be executed for murder.
At a minimum, the five-Justice majority ruled in the case of Moore v. Texas that states cannot adhere to out-of-date standards developed by doctors and medical academics, but must look for guidance in the current standards. The three dissenters protested that the majority was turning medical learning into constitutional mandate, at least in deciding when it would violate the Eighth Amendment’s ban on cruel and unusual punishment to execute an intellectually disabled individual.
Since it issued the famous decision 15 years ago in Atkins v. Virginia, barring the execution of those convicted of murder who lack sufficient intellectual capacity, the court has been struggling to achieve two goals at the same time: give states flexibility to set standards, but not allow them unfettered choice to do so.
Tuesday’s decision was the latest effort in the pursuit of the same goals, but the majority opinion written by Justice Ruth Bader Ginsburg was based very heavily on the most current clinical standards for defining intellectual disability.
For example, her opinion faulted a Texas state court for focusing on the positive signs that a Houston man during a store robbery had been able to adapt to ordinary life tasks and to life in prison, because current standards put the focus instead on weighing the “deficits” in an individual’s adaptive behavior. (Bobby James Moore was convicted of murder and sentenced to death for killing a store clerk in Houston during a robbery in 1980)
The eight-member court did agree unanimously that state judges in Texas cannot be required to use seven factors that the state’s Court of Criminal Appeals had laid down in a 2004 decision (Ex parte Briseno), mainly because that ruling provided a list of non-scientific factors — such as whether the individual could hide facts or lie effectively, and how friends and relatives personally evaluated the individual’s intellectual capacity.
But the Justices divided along a more basic difference in rationale: the majority found the Texas court was wrong in also relying upon a 1992 version of clinical standards, while the dissenters said the proper test for courts was not what the medical community set as standards for clinicians but how a court would assess the comparative practices among the states in providing definitions of intellectual disabilities in the criminal law field.
The Ginsburg opinion basically laid out how the state’s highest court for criminal law had applied the 1992 version of clinical standards, and then compared those conclusions to what was now in current standards, and found too wide a gap between the two.
In ruling that Texas had deviated from the current standards, the majority said that the state court had gone astray by focusing on such “adaptive strengths” as the ability to live on the streets, play pool and mow lawns for money, and on developing skills while in prison. Current clinical standards, the majority said, focus on adaptive weaknesses, or deficits.
The Ginsburg opinion was supported by Justices Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy and Sonia Sotomayor.
Chief Justice John G. Roberts, Jr., wrote the dissenting opinion, joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.
That opinion complained that the majority “abandons the usual mode of analysis this court has employed in Eighth Amendment cases” — that is, a mode of legal analysis that focuses on what other states have done to determine where consensus lies.
The majority, according to the Chief Justice, “crafts a constitutional holding based solely on what it deems to be medical consensus.” And, the dissent added, by still saying that states have discretion while taking away much of it, the majority had provided no real guidance for the states and for lower courts.