Wednesday, November 30, 2016

Texas Argues for Executing Intellectually Disabled Man

Posted By on Wed, Nov 30, 2016 at 10:37 AM

click to enlarge Bobby Moore - TDCJ
  • TDCJ
  • Bobby Moore
On Tuesday, Texas argued before the U.S. Supreme Court in favor of executing a convicted murderer who, as a teenager, didn't understand how seasons work, couldn't tell time, didn't know the days of the week or months of the year, and couldn't grasp the principle that subtraction is the opposite of addition.

Lawyers for Bobby James Moore, who in 1980 shot and killed a Houston convenience store clerk during a botched robbery, say that he fits virtually any modern understanding of intellectual disability – that is, except for the one employed by Texas when deciding whether or not to execute somebody.

While the Supreme Court banned executing intellectually disabled murders in a 2002 case, saying it violates the Constitution's prohibition on cruel and unusual punishment, it didn't tell states how they should decide who is and isn't intellectually disabled (or, to use the court's dated terminology, "mentally retarded"). But in recent years, the court has intervened when states pushed the line too far away from the opinion of experts in the field. Two years ago, the Supreme blocked the capital punishment of a severely disabled murderer that Florida wanted to execute because he at one time scored a 71 on IQ tests (the state cutoff was 70).

Moore's lawyers argue that Texas, home to the country's most active death chamber, is far outside the consensus medical opinion on intellectual disabilities (at least when it comes to executing inmates), and that instead, Texas courts use a standard that is subjective and in part rooted in actual fiction.

Consider the so-called "Briseno factors" that Texas courts are supposed to weigh when considering whether a convicted killer is intellectually disabled enough to be put to death by the state. In the 2004 ruling from the Texas Court of Criminal Appeals, the state's highest criminal court, that created the Briseno factors, judge Cathy Cochran references Lenny, the big, strong, and mentally disabled character from Of Mice and Men who accidentally kills a woman at the end of the novel.

"Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt (from execution). But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?" she wrote, upholding the state's right to execute a mentally impaired man. (Steinbeck’s family says it's appalled the work has been used to justify executing a mentally disabled person.)

In court on Tuesday, Supreme Court Justice Sonia Sotomayor said that even using those Steinbeck-inspired factors, it seems Moore should be spared the ultimate punishment. After he twice failed first grade, school officials just continued to advance him so he could stay with children of a similar age. Among other problems at home, Moore's father beat him repeatedly because he kept failing at school – that is until he threw him out of the house at age 14, leaving Moore to live on the streets. Sotomayor said one sign of his obvious disability: he never learned that eating rotten food out of garbage cans would make him sick, he just kept doing it.

Texas meanwhile has leaned on a two-decade-old manual by the American Association on mental retardation as reason to execute Moore (his IQ tests have ranged from 57 to a high of 78), saying the fact that he realized he could survive on the streets by robbing people is sign he can adapt and therefore makes him intelligent enough to execute. Moore's lawyers argue the state is using outdated medical standards, and that he clearly meets the current medical understanding of intellectual disability.

Moore's lawyer, Clifford M. Sloan, told the justices that Texas' "unique approach to intellectual disability in capital cases" flouts the High Court's 2002 ruling, called Atkins v. Virginia, that banned states from executing the intellectually disabled by using "clinically unwarranted" requirements.

Moore argued that under the current requirements, Texas is basically only halting the executions of the most severely disabled – which he says isn't the precedent the Supreme Court has set. "[M]ost fundamentally, it challenges and disagrees with this court's holding in Atkins; namely, that the entire category of the intellectually disabled, every person who is intellectually disabled, is exempt from execution under the Eighth Amendment."

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