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Source: Betty Layne DesPortes, JD, MS, AAFS President
Decision of the United States Supreme Court in Moore v. Texas
Issued March 28, 2017
The recent Moore v. Texas, 581 U.S. ____, 137 S.Ct. 1039 (2017) decision marks the third United States Supreme Court ruling in the past 15 years related to the imposition of the death penalty on persons with intellectual disability, a condition formerly referred to as “mental retardation.” In 2002, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304, that “executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment.” Atkins v. Virginia provided guidance to states that intellectual disability required both below-average intelligence and poor-adaptive functioning. Despite this guidance, issues arose in how states defined intellectual disability, with the application of different criteria and legal standards.
More than a decade later, in Hall v. Florida, 134 S.Ct. 1986 (2014), the Court determined that Florida had violated the Eighth Amendment by disregarding established medical practice when it determined that Hall was not intellectually disabled based on a rigid IQ score cutoff of 70, without consideration of standard of error in its measurement. Additionally, Florida had ignored adaptive functioning as part of Hall’s assessment. In Hall, the Supreme Court stated, “even if the views of medical experts do not dictate a court’s intellectual disability determination, the determination must be informed by the medical community’s diagnostic framework.”
Most recently, the Moore v. Texas case raised the issue of how states must apply current medical standards when determining whether a person is intellectually disabled. In the 1980s, the appellant, Bobby James Moore, was convicted in a fatal shooting robbery in Texas and sentenced to death. Moore’s defense team filed a challenge to his death sentence, asserting that he was intellectually disabled and therefore not subject to the death penalty. The state habeas court held an evidentiary hearing to determine whether Moore met the state’s “intellectual disability” criteria.
The state habeas court followed current medical standard criteria as set forth in the 11th edition of the American Association on Intellectual and Developmental Disabilities clinical manual, Intellectual Disability: Definition, Classification, And Systems of Supports (AAIDD-11) and the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association. The court found that the defendant’s mean IQ score (70.66) indicated mild intellectual disability. Then, relying on the testimony of several mental health experts, they determined that Moore had demonstrated significant adaptive deficits (scores on the three adaptive skill sets were more than two standard deviations below the median) from the time he was a minor. The habeas court found that Moore was intellectually disabled because he met the two criteria for this condition, as specified in the Atkins ruling: below-average intelligence and poor-adaptive functioning.
The state habeas court recommended that the Texas Court of Criminal Appeals (Texas CCA) either reduce Hall’s sentence to life without parole or return the case to the trial court so that it could rule on the issue of intellectual disability. The Texas CCA rejected this recommendation and denied Moore’s petition based on prior Texas case law that relied on older medical standards (Ex Parte Briseno, 135 S.W. 3d 1). In the Briseno case, the Texas CCA adopted the standard used in the 1992 (9th) edition of the American Association on Mental Retardation Manual (AAMR-9), a predecessor to the AAIDD-11. This manual required that the adaptive deficit be “related” to the intellectual-functioning deficits. Additionally, the Texas CCA in Briseno listed seven evidentiary factors they considered relevant to the intellectual disability inquiry.1
The Texas CCA found that, because two of his seven IQ scores were above 70, Moore did not prove that he had significantly below-average intelligence. Moreover, even though his adaptive skill test scores were greater than two standard deviations below the median, they concluded that his adaptive strengths outweighed any adaptive deficits. Additionally, the Texas CCA argued that Moore had not proved that those deficits were not due to other traumatic experiences or personality disorders. The United States Supreme Court agreed to hear the case and determine whether the Texas CCA’s reliance on older, superseded medical standards complied with the Supreme Court’s recent rulings on the prohibition of executions of intellectually disabled individuals.
The Supreme Court rejected the Texas CCA’s application of the superseded medical standards for several reasons: (1) the Texas CCA’s conclusion that his IQ scores established that Moore was not intellectually disabled did not comport with the Supreme Court’s ruling in Hall. If the IQ score is close to 70 (two standard deviations below the median IQ), then the deciding court must account for the standard error of measurement. Moore’s score of 74, adjusted for the standard error, yields a range of 69-79. Because the lower end of Moore’s score falls below 70, courts must then examine whether he has adaptive functioning deficits; (2) the Texas CCA’s consideration of Moore’s adaptive functioning also deviated from prevailing clinical standards and from the older clinical standards the court claimed to apply. The Texas CCA focused on Moore’s adaptive strengths but the medical community, the majority opinion emphasizes, focuses the adaptive functioning requirement on the adaptive deficits. Furthermore, in reaching its decision, the Texas CCA partially relied on Moore’s improved behavior in prison. In citing the DSM-5, the Supreme Court noted that clinicians caution against relying heavily on adaptive strengths developed in such a controlled setting. The Texas CCA also concluded that other factors, such as academic failure and childhood abuse, detracted from a determination that his intellectual and adaptive deficits were related. The Supreme Court, in citing the AAIDD-11, countered that such experiences are risk factors for intellectual disability. That is, they should be factors that cause the clinician to further explore the possibility of intellectual disability, not disregard it. Furthermore, the Court argued that the Texas CCA’s requirement that Moore show his adaptive deficits were not due to a personality disorder further departed from standard clinical practice. In interpreting the DSM-5 and AAIDD-11, the Court stated that intellectually disabled individuals also suffer from other physical or mental impairments, such as autism, attention-deficit/hyperactivity disorder, and depressive and bipolar disorders. Rates of co-occurring mental, neurodevelopmental, medical, and physical conditions are three to four times higher in individuals with intellectual disabilities than in the general population; and, (3) the seven Briseno factors further impeded the Texas CCA’s assessment of Moore’s adaptive functioning. The Supreme Court held that these factors were outliers relative to the criteria used in other states. Texas itself does not follow them in other legal arenas where a determination of intellectual disability must be made. Furthermore, the Court found that the Briseno factors have no basis in accepted medical standards and are instead stereotypes of intellectual disability that the medical community has endeavored to dispel. Even the dissenting opinion authored by Chief Justice John Roberts agreed that the Briseno factors should be abandoned because they have no medical basis and reliance on such factors is “incompatible with the Eighth Amendment.”
The main area of disagreement between the majority and dissenting opinions (authored by Justice Ruth Bader Ginsberg and Justice Roberts, respectively) concerned the role of evolving medical standards in formulating a legal standard. In the majority opinion, the Court required states to primarily use current and generally recognized medical standards in framing their legal requirements for determining intellectual disability. Justice Ginsburg argued that although the states do not have to adhere to all information published in the latest medical guide, they cannot completely disregard or ignore current medical standards. Both the Atkins and Hall decisions left to the individual states the task of developing the appropriate mechanisms to enforce the proscription of executing the intellectually disabled; however, the Supreme Court cautioned that such discretion was not unfettered. Relying on the Hall decision, the majority opinion in the Moore case noted that “although being informed by the medical community does not demand adherence to everything stated in the latest medical guide, our precedent does not license disregard of current medical standards” per Moore, 581 U.S. ____ (2017).
In his dissent, Justice Roberts did not advocate that medical standards be disregarded; however, he argued that it is the province of the courts to define intellectual disability for the purposes of the Eighth Amendment and that states should be given more latitude to determine their own standards. Roberts reasoned that the court’s ruling confuses the role of clinicians and judges and leads to greater ambiguity in how states should define intellectual disability: “States have ‘some flexibility’ but cannot ‘disregard’ medical standards. Neither the Court’s articulation of this standard, nor its application, sheds any light on what it means.”
The Moore decision left open how states will apply adaptive functioning criteria to incarcerated persons. One challenge is that evaluations in more structured settings, such as correctional facilities, would be skewed toward finding better adaptive functioning skills than would be found in less structured settings. Additionally, ethical questions arise regarding the role professional and medical organizations should play in the development of intellectual disability criteria in capital cases, particularly when faced with disparities between legal and clinical purposes and standards. That is, organizations face serious competing ethics considerations regarding whether to guide states in establishing criteria for poor adaptive functioning in high-stakes capital cases, given that such criteria can be largely subjective among medical professionals.
Contributors: William Connor Darby, MD, Psychiatry & Behavioral Science; Anna Christa Petty, JD, Jurisprudence; Christopher R. Thompson, MD, Psychiatry & Behavioral Science
- The seven Briseno factors are: (1) did those who knew the person best during the developmental stage – his family, friends, teachers, employers, authorities – think he was mentally retarded at that time, and if so, act in accordance with that determination?; (2) has the person formulated plans and carried them through or is his conduct impulsive?; (3) does his conduct show leadership or does it show that he is led around by others?; (4) is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?; (5) does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?; (6) can the person hide facts or lie effectively in his own or others’ interests?; (7) putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose? Briseno, 135 S.W. 3d at 8-9.