Can a state require the use of outdated medical standards in determining whether an individual is ineligible for execution due to intellectual disability?
After the Supreme Court prohibited the execution of the intellectually disabled in Atkins v. Virginia in 2002, Bobby James Moore petitioned for habeas relief from his death sentence on the grounds of intellectual disability. A Texas habeas court found that Moore was intellectually disabled under the American Association on Intellectual and Developmental Disabilities’ current definition of intellectual disability. The Texas Court of Criminal Appeals, however, rejected Moore’s claim and held that Texas courts must apply AAIDD’s 1992 intellectual disability definition, which was adopted in a 2004 Texas case. Moore claims that mandating the use of outdated and non-clinical criteria violates the Eighth Amendment and Supreme Court precedent. Texas maintains that its definition of intellectual disability is within the national consensus and, therefore, does not violate the Eighth Amendment. The Court will determine the breadth of the Eighth Amendment’s protections for intellectually disabled defendants, and the case will have significant consequences for all defendants with intellectual disabilities that are on death row or facing the death penalty in Texas and may have wider effects across the country.
Questions as Framed for the Court by the Parties
Does it violate the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability and require the use of outdated medical standards in determining whether an individual may be executed?
In 1980, Bobby James Moore was convicted of murder in Texas and sentenced to death. The Texas Court of Criminal Appeals affirmed Moore’s conviction and sentence and denied his state habeas corpus petition. Moore’s first federal habeas corpus petition was dismissed without prejudice after the court ruled that Moore failed to exhaust his state remedies. His second state habeas petition, in which Moore claimed that his trial counsel failed to present mitigating evidence of his troubled upbringing and intellectual disability, was also denied. Moore filed a second federal habeas petition asserting the same claims, and the Fifth Circuit Court of Appeals remanded for a new sentencing hearing. After hearing extensive evidence of Moore’s upbringing and intellectual capabilities, a jury again sentenced him to death in 2001. Moore filed a third state habeas petition in 2003, arguing that he was intellectually disabled and therefore ineligible for execution under the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Supreme Court held that the Eighth Amendment's ban on “cruel and unusual punishment” categorically prohibits the execution of intellectually disabled individuals. The Atkins Court, however, explicitly left to the states the task of determining which defendants qualify as intellectually disabled.
In the wake of Atkins, the Texas legislature declined to enact a statutory definition of “intellectual disability” to implement the mandate of Atkins. As a result, in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) the Texas Court of Criminal Appeals adopted the American Association on Mental Retardation’s (today known as the American Association on Intellectual and Developmental Disability (“AAIDD”)) 1992 definition of intellectual disability that Texas uses for social services and financial aid. The definition has three elements: first, intellectual function that is significantly below average; second, related adaptive functioning impairments; and third, pre-adulthood onset. To assist courts in applying the second element, the Briseno court volunteered a list of seven “evidentiary factors” for courts to use in evaluating whether a potentially intellectually disabled defendant is eligible for execution. These non-clinical factors, which include the ability to lie effectively and formulate plans, are sometimes called the “Lennie” factors because the court introduced them by reference to John Steinbeck’s fictional character Lennie from his novel Of Mice and Men.
Moore argued in his third state habeas case that because AAIDD had revised its definition of intellectual disability since Briseno and Atkins were decided, the court was obligated to use AAIDD’s updated definition. The habeas court accepted Moore’s argument and held that Moore had proved by a preponderance of the evidence that he was intellectually disabled under AAIDD’s current definition, and recommended a grant of relief. The Texas Court of Criminal Appeals instead held that the habeas court had erred in applying AAIDD’s updated definition of intellectual disability instead of the 1992 definition adopted in Briseno. The court analyzed the record and determined that, under the previous definition and the seven evidentiary factors, Moore failed to demonstrate he suffered from “related” adaptive functioning impairments and denied habeas relief.
Moore appealed, and the Supreme Court granted certiorari to determine if mandating the use of outdated or non-clinical criteria conflicts with Atkins and violates the Eighth Amendment.
RELEVANT PRECEDENT: THE USE OF MEDICAL STANDARDS
Moore argues that the Court in Atkins used clinical definitions of intellectual disabilities to decide that the application of capital punishment on individuals with intellectual disabilities violates the Eighth Amendment. Moore acknowledges that the Atkins Court delegated the responsibility of creating statutory definitions of intellectual disability to the states. Nonetheless, Moore contends that the Atkins Court ordered states to craft their statutory definitions in line with medical standards, and did not grant states plenary powers to deviate from the clinical definitions relied upon in Atkins. Additionally, Moore argues that the Court in Hall v. Florida, 134 S. Ct. 1986 (2014), held that it was appropriate to consult medical opinions in determining the cut-off for an intellectual disability legal diagnosis.
Moore argues that both Hall and Atkins recognize that the American Association on Intellectual and Developmental Disabilities’s (“AAIDD”) clinical manual, as well as the American Psychological Association’s (“APA”) Diagnostic and Statistical Manual of Mental Disorders, are authorities that should be used in determining intellectual disabilities. Furthermore, Moore contends that both Hall and Atkins explicitly state that medical knowledge is continuously improving. Moore contends that medical experts would be required to knowingly apply outdated medical standards in suggesting an intellectual disability diagnosis, a practice that conflicts with their professional medical duty.
Moore argues that the Texas Court of Criminal Appeals (“CCA”) in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004), erroneously held that clinical definitions are subjective and should not necessarily preclude a legal determination of intellectual disability. Since the CCA continues to apply the medical standards outlined in Briseno, Moore contends that the CCA mistakenly applies an outdated legal definition that has significant bearings on case outcomes.
Conversely, Texas responds that Atkins did not impose a uniform standard for diagnosing intellectual disabilities but left this issue to the states’ discretion. Instead, Texas claims that it exercises its discretion by continuing to apply the three-prong test outlined in Atkins and applied in Briseno. . This three-prong test solely looks at 1) substantially sub-average intellectual function; 2) related limitations in adaptive functioning; and 3) onset of mental limitations by age 18. . Additionally, Texas argues that it has adopted the APA standards, such as an IQ cutoff of approximately seventy or below, outlined in Atkins. . Finally, Texas argues that the Briseno evidentiary factors, seven non-clinical factors for courts to use in considering whether a low-IQ defendant nevertheless has sufficient adaptive skills to face execution, are optional considerations that are not indicative of the currency of Texas’s intellectual disability definition. .
Furthermore, Texas argues that Hall’s premise that states do not possess unlimited discretion implies that states have some discretion in declining to adopt the newest medical definitions of intellectual disability. . Finally, Texas argues that the legal definition for intellectual disability necessarily differs from the advanced medical definition because it reflects unique legal considerations, such as criminal responsibility and competency.
MEDICAL COMMUNITY STANDARDS VERSUS NATIONAL CONSENSUS
Moore argues that Texas’s legal definition of an intellectual disability clashes with the medical community’s position. Moore maintains that, while the three-prong test is relevant, it does not sufficiently consider advancements in understanding and diagnosis. Moore specifically points to developments in interpreting the function of IQ scores, like reducing absolute reliance on the IQ score cut-off of 70 and weighing the IQ score on par with other assessments. Additionally, Moore argues that the recent version of the Diagnostic and Statistical Manual (“DSM”) has clarified intellectual functioning factors, such as “reasoning, planning, solving problems, thinking abstractly, comprehending complex ideas, learning quickly, and learning from experience.”
Moore also claims that measuring adaptive deficits and its severity level has improved. For instance, adaptive insufficiencies are not weighed against adaptive strengths, but considered individually. Additionally, Moore contends that practices used to measure adaptive functioning currently consider a lack of conceptual, social, or practical skills.
Given these medical developments, Moore argues that Texas erred in giving IQ scores dispositive weight in his evaluation for an intellectual disability. Additionally, Moore contends that Texas misinterpreted his IQ score by analyzing it as a fixed figure as opposed to a range, a practice that is contrary to modern medical standards. Finally, Moore claims that Texas erred in weighing his adaptive strengths, such as playing pool, against his adaptive deficits, like limited communication skills.
Texas counters that there is no national accord urging states to adopt contemporary medical standards for determining intellectual disabilities. For states that have adopted modern medical definitions, Texas argues that, generally, these changes are not material changes to the definitions of intellectual disabilities. . Additionally, Texas highlights, out of the thirty states retaining the death penalty, only four have modified their definition for intellectual disabilities to reflect the modern medical standard.. Also, Texas maintains that twenty-four other states employ medical standards that mirror Texas’s approach. As a result, Texas argues that the national consensus supports the continued use of the Atkins intellectual disability standard.
Finally, Texas argues that compelling states to constantly adopt the newest medical standard would create unnecessary confusion and unworkable standards. . Specially, Texas contends that various medical organizations may present distinctive standards, creating an enigma for states to resolve about which standard is superior.
Moore argues that the Eighth Amendment creates a categorical exemption from the death penalty for individuals with intellectual disabilities. Therefore, Moore contends that employing an outdated method for assessing intellectual disabilities risks an Eighth Amendment violation. Specifically, Moore argues that the Briseno standard, although derived from Atkins, relies too heavily on subjective interpretations, stereotypes, and irrelevant factors. Given that the death penalty is a uniquely irreversible punishment, Moore argues that there is a great need for precision in diagnosing intellectual disabilities according to modern medical standards. Moore claims that Atkins reinforced the importance of a precise diagnosis given the Court’s extensive discussion linking the Eighth Amendment to the clinical definition for intellectual disabilities.
Texas maintains that the Briseno factors do not create a constitutional issue. Texas argues that the Atkins Court intentionally delegated the responsibility of enforcing the Eighth Amendment constitutional requirements to the States. . While Texas acknowledges that a state’s intellectual disability standard may sometimes be unconstitutional, such as Florida’s rigid IQ cut-off at seventy, Texas argues that its practice is distinct because it follows the guidelines outlined in Atkins. . Finally, Texas argues that it fulfills the Eighth Amendment requirement of not imposing a cruel and unusual punishment against individuals with intellectual disabilities by using the Briseno factors, a standard built from clinical factors. .
IS TEXAS’S STANDARD CONSISTENT WITH THE MEDICAL CONSENSUS?
The American Psychological Association, the American Psychiatric Association, the American Academy of Psychiatry and the Law, the National Association of Social Workers, and the National Association of Social Workers Texas Chapter (“the Associations”) argue in support of Moore that Texas’s definition of intellectual disability ignores the medical consensus expressed in the AAIDD Manual and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders V (“DSM-V”). The Associations argue that the medical community is constantly refining the method for diagnosing intellectual disability and states must keep pace with the evolving scientific process or they risk persistent misdiagnosis. Also supporting Moore, the American Association on Intellectual and Developmental Disabilities (“AAIDD”) and the Arc of the United States argue that Texas’s use of the seven evidentiary factors cannot be permitted because the factors are little more than stereotypes that are not based upon clinical standards and are incompatible with widely accepted diagnostic practices.
The Criminal Justice Legal Foundation (“CJLF”), in support of Texas, counters that the Associations vastly exaggerate the degree to which the AAIDD Manual and the DSM-V represent a professional consensus of mental health professionals. CJLF argues that AAIDD’s own publications, which feature disagreement among mental health professionals as to the definition of intellectual disability, demonstrate the lack of medical consensus. CJLF further cites several professors who argue that the DSM-V contains “unsafe and scientifically unsound” provisions that will produce substantial over-diagnosis. CJLF also argues that much of the DSM-V was produced in secret and closed to criticism—contrary to the scientific method.
WHAT ARE THE EFFECTS OF TEXAS’S STANDARD?
In support of Moore, the American Bar Association (“ABA”) argues that Texas’s non-clinical definition of intellectual disability permits the state to execute defendants that, if evaluated under clinical standards, would be diagnosed as intellectually disabled. The ABA uses the example of four people, including Moore, who are currently on death row in Texas and facing execution after Texas courts applied the state’s definition of intellectual disability and rejected their Atkins claims. The ABA argues that, under widely accepted clinical standards, all four individuals would be diagnosed as intellectually disabled. The ABA concludes that these examples demonstrate that Texas’s definition is extremely underinclusive and permits the execution of intellectually disabled individuals who should not be eligible for the death penalty.
The state of Arizona and fifteen other states (“the States”) counter that Texas’s standard is not an outlier because it fits within the multitude of methods that have been adopted across the United States to implement Atkins’s mandate. The States reject the premise that there is a single acceptable standard across the nation, and maintain that, while the Supreme Court did not leave the states unlimited discretion to develop their own approaches, the Court also did not give the power to define constitutional standards to private professional organizations. To support their argument, the States analyze the approaches taken by various states, noting that the vast majority of states use “outdated” definitions of intellectual disability in at least some manner when adjudicating Atkins claims. For example, the States argue that, despite the medical community’s post-Atkins revisions to the definition of “impaired adaptive functioning,” the plurality of death penalty states continue to use the now-outdated definition from when Atkins was decided.
- Adam Liptak, Supreme Court to Hear Death Penalty Cases, The New York Times (June 6, 2016).
- Lyle Denniston, Court Reopens Race and Death Penalty Issues, SCOTUS Blog (June 6, 2016).
- S.M., The Supreme Court Will Hear Two Death-Penalty Appeals, The Economist (June 7, 2016).
- Adam Liptak, Supreme Court to Consider Legal Standard Drawn From 'Of Mice and Men', New York Times (August 22, 2016).
- Linda Wertheimer, Supreme Court Will Consider Legality of the 'Lennie Standard', NPR (August 28, 2016).