The Supreme Court heard oral arguments yesterday in the case of Moore v. Texas, a challenge to the standards Texas uses to determine whether inmates are too mentally disabled to be executed. In this case, Bobby James Moore was sentenced to death in 1980 for the murder of a grocery store clerk. A court later ruled that Moore was too mentally disabled to be executed, based on modern medical standards. Texas's highest criminal court, however, reversed that determination.
Questions of intellectual disability and eligibility for capital punishment, Texas ruled, must be determined on the state's judicial precedent, which references an outdated medical definition of disability from 1992 and Lennie Small. Yes, that Lennie, the kindhearted but dim-witted character from John Steinbeck's "Of Mice and Men."
How Should Courts Determine Intellectual Disability?
Moore's case highlights the ambiguities created by the Supreme Court's death penalty and intellectual disability jurisprudence. In 2002, the Court ruled in Atkins v. Virginia that the execution of the mentally disabled violated the Eighth Amendment's prohibition on cruel and unusual punishments. But it provided no definitive rule as to what constituted mental disability severe enough to bar execution, leaving the question up to individual states.
Two years ago, in Hall v. Florida, the Court tossed out Florida's IQ-based standard. "Intellectual disability is a condition, not a number," the Court declared, holding that a mental disability determination must be "informed by the medical community's diagnostic framework." But again it did not set any hard and fast rules about just how "informed" that determination must be.
Texas and the "Lennie Standard"
Moore was sentenced to death despite having an average IQ of 70 and despite being unable, at age 13, to tell the days of the week or understand the difference between addition and subtraction. Under current medial standards, a trial judge ruled, Moore could not be executed. But, according to the Texas Court of Criminal Appeals, those standards aren't what courts should be relying on. Moore didn't meet the Texas's adopted legal definition of intellectual disability, the CCA found.
That definition is based off medical standards from 1992, standards the medical community no longer relies on, as well as a 2004 ruling by the CCA, In re Briseno. In that ruling, Texas Judge Cathy Cochran turned to Steinbeck's Lennie to illustrate her point.
(Spoiler alert for those who haven't read "Of Mice and Men:" Lennie unintentionally kills a woman and is himself killed in turn.)
"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, she wrote, before laying out seven evidentiary factors courts should address. Those factors have since become known as the "Lennie standard."
Justices Wonder About State Discretion
During oral arguments, both Justices Breyer and Kennedy expressed concern that the Court could impinge on the discretion granted to states in its earlier opinions. Could a new rule preserve discretion afforded by Atkins, Kennedy asked, while still requiring courts to hew closely to medical standards? In tough cases, how are courts to determine where to draw the line? "Are we supposed to have all of those hearings here," Justice Breyer wondered, in the Supreme Court itself?
Any determination of disability should be based, Clifford M. Sloan argued for Moore, on the clinical standards and that "if a state wants to conflict with or disagree with the clinical standard, then there has to be a sound reason for doing so."
The Odds Seem to Be Against Texas
Justices Breyer, Kennedy, and Kagan all seemed concerned with the factors that Texas relied upon, including the idea that those standards should reflect the consensus of Texas citizens. The question of intellectual disability, Justice Breyer asserted, "is not what the citizens of the state think about who should be executed. That has nothing to do with it." So, "what were they up to in this opinion?" he asked.
Scott A. Keller, arguing for Texas, attempted to deemphasize those concerns, repeatedly noting that Texas relied on the three-prong test established by the Court in Atkins and Hall.
But, Justice Kagan retorted, the "entire point of Hall" was that "you don't get to apply" the test "however you want."
When Justice Sotomayor brought up Lennie directly (the character, she noted had worked on a farm, yet Moore's ability to mow a lawn was considered to weight against his disability), Keller responded that Lennie "was never part of the test." It was simply an aside, he asserted, with the court adopting only the clinical standards. "The Lennie standard has never been part of a standard," he said.
Overall, it seemed like Texas had a difficult time persuading the justices, five of which (Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) appeared willing to rule for Moore.