For 14 years, the Supreme Court has been puzzling over how to solve a basic constitutional puzzle over the death penalty: how to make sure that people who are intellectually disabled – but are not insane – are spared from execution. For a time during a hearing on Tuesday, it appeared that, at this point, it needed only to conclude that states should not follow the lead of Texas – the nation’s most execution-minded state. But the Justices did move beyond that, and made what appeared to be genuine progress.
That is a project that began with the Court’s 2002 ruling in the case of Atkins v. Virginia. That was one of a series of decisions in which the Justices were setting up categories of people for whom the death penalty would be considered cruel and unusual and thus barred by the Eighth Amendment. In Atkins, the Court changed its mind from its refusal in 1989 to include intellectually disabled people in the protected category, and added them (in that ruling, it referred to this group as “mentally retarded,” but that is a phrase that has since become culturally discredited, so the Court no longer uses it).
At the time, however, it was not entirely clear who would be put into that grouping. The Court remarked candidly in that decision that there was no consensus on “which offenders are retarded,” so it chose to leave it to the states to devise standards to implement the new constitutional mandate. That may or may not have been intended as a signal that the states could experiment with their own definitions, but they have done so in response.
Two years ago, the Court decided Hall v. Florida, making clear that states could not use the single factor of an IQ test score as the standard. “Intellectual disability is a condition, not a number,” it said. So, it said that lawyers must be allowed to offer clinical evidence based upon medical standards, especially on how well a person could adapt to normal life patterns and changing circumstances. Again, though, it avoided spelling out a legal formula that would encompass a uniform standard.
Last June, it returned to the project. It agreed to hear the case of Moore v. Texas, raising the specific issue of whether a state could use an out-of-date set of clinical standards or was obligated to use the most current standards (the medical community changes those about every ten years). The case involves Bobby James Moore, convicted of murder for killing a store clerk in Houston during a robbery. Texas’ highest court for criminal cases, the Court of Criminal Appeals, ruled that he could be executed because he was not intellectually disabled, based on a 2004 state court decision that made binding in Texas a set of medical standards that prevailed in 1992, along with assessments of the judgment of the people of a community about an individual’s mental capacity.
The Moore case came up for argument before the Justices on Tuesday, and the hearing started slowly because the Court and Moore’s lawyer had to sort out just what question they were debating. As the hearing unfolded, though, it became clear that the focus landed directly on the meaning of that 2004 Texas state court ruling (issued in the case of Ex parte Briseno).
The more liberal Justices bore down on that ruling’s perceived defects, suggesting that it amounted to a declaration that Texas could execute any person who was only “mildly” disabled intellectually, even if every clinical expert would agree that that individual was, in medical terms, actually too disabled to be executed. Those Justices suggested that Texas would only spare those convicted individuals who were severely disabled intellectually.
Justice Anthony M. Kennedy, who wrote the decision in Hall v. Florida and has become the leader of the Court on limiting the death penalty’s application to vulnerable categories of individuals, joined in milder terms as a critic of Texas’ approach.
Moore’s lawyer, Washington, D.C., attorney Clifford A. Sloan, eagerly adapted part of his argument to that Texas-focused inquiry, noting that the state had used the “Briseno standard” only for judging intellectual disability in death-penalty cases, and not in other criminal cases. But Sloan also continued to weave into his argument his basic stress on the need for states in general to apply the latest clinical standards, adapting to each new set as it emerged every decade or so.
Texas’s lawyer, state Solicitor General Scott A. Keller of Austin, made a studied effort to portray the Briseno decision as fully consistent with the Court’s mandate on looking to medical standards for judging intellectual disability, but that effort kept running into the liberal Justices’ harsh critique of their view of the Briseno decision.
The larger project to further define the Atkins mandate did get advanced during the argument, as Justice Stephen G. Breyer pointed out – with no evident disagreement on the bench – that it probably was not possible for the Court to lay down a specific, uniform standard for judging intellectual capacity, especially in “borderline” cases between the margins of obvious mental incapacity and obvious mental capacity.
That was helpful because, for one thing, the Court would not have to lay down a flat prohibition on a state’s use of anything but the very latest clinical standards, and thus could continue to allow states to work this out on their own, so long as they stayed faithful to the core
Atkins protection of the intellectually disabled.
It also was helpful because it moved the Court back to the task of finding ways to give states more guidance on the Eighth Amendment objective that the Atkins and Hall decisions had meant to achieve. Instead of engaging in the awkward process of judges attempting to mediate the use or non-use of specific clinical standards, the Court might find itself more able to do the judicially manageable task of clarifying how much discretion the Eighth Amendment would allow states to use in defining eligibility for a death sentence.
(NOTE: This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)
