Special Education

Intellectual Disability Definition Plays Role in Supreme Court Deliberations

By Christina A. Samuels — December 01, 2016 6 min read
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Cross-posted from the School Law Blog

By Mark Walsh


The U.S. Supreme Court on Tuesday once again found itself weighing the impact of intelligence testing and family and school influences on whether a state may execute a criminal defendant who is close to the line of having an intellectual disability.

“Can you explain why Texas applies a different test to determine whether a schoolchild is intellectually disabled, or a juvenile offender” has such a disability, compared with recipients of the death penalty, Justice Ruth Bader Ginsburg demanded to know from a lawyer representing the state. “Why does it have a different standard for capital cases only?”

Scott A. Keller, the Texas solicitor general, said it was “valid for a state to have a different definition of when someone is morally culpable under the Eighth Amendment versus when someone should be able to get social-services benefits.”

He was defending a decision by that state’s highest court of criminal appeals that held a now 57-year-old convicted murderer, Bobby James Moore, had failed to establish that he had an intellectual disability and thus was not exempt from execution under the U.S. Supreme Court’s recent cases barring those with such disabilities from capital punishment.

In 2002, in Atkins v. Virginia, the high court held that the Eighth Amendment prohibits the execution of those with mental retardation, as the court then termed it. The court held that the “diminished capacities” of people with mental retardation to process information, to learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others undermined the traditional justifications for the death penalty. But the high court’s decision left much for the states to interpret.

In 2014, in Hall v. Florida, the court held that state may not set an IQ score of 70 or below as the rigid cutoff that would permit it to execute a person with an intellectual disability.

The state of Florida’s rigid cutoff score of 70 or below clashed with the views of those who design, administer, and interpret the IQ test, Justice Anthony M. Kennedy wrote for a 5-4 court, by failing to take into account the standard error of measurement.

In the case argued Tuesday, Moore v. Texas (No. 15-797), the question is whether it violates the Eighth Amendment, as well as the court’s recent decisions, for a state to bar the use of the most recent standards on intellectual disability and instead require an older standard.

“Texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards,” said Clifford M. Sloan, a Washington lawyer who represents Moore. “It relies on harmful and inappropriate lay stereotypes.”

Moore was 20 in 1980 when he participated with two others in a bungled robbery of a Houston market. Moore’s gun discharged and killed one of the store clerks. He was sentenced to death.

Only after the 2002 Atkins ruling did Moore receive a state habeas hearing that explored whether he had an intellectual disability. Evidence revealed that Moore had profound mental and social difficulties as a youth, such as an inability to tell time or to understand the seasons of the year. Moore showed a lack of comprehension of fundamental skills possessed by his peers and received failing grades, court papers say, but school officials nevertheless promoted him so that he would not be significantly older than his classmates. Moore dropped out of school after failing every subject in 9th grade.

Moore’s lawyers also point to a debilitating head injury Moore received during battles to integrate Houston’s school system. In 1971, when he was 12, Moore was part of a group of African-American students being bused to integrate a predominantly Hispanic school. During a fracas involving a throng of hostile people, Moore was hit in the head by a brick and chain and suffered what a trial court concluded was possibly a traumatic brain injury.

In 2014, Moore had an Atkins hearing before a state trial judge to determine if he had an intellectual disability sufficient enough to disqualify him for the death penalty. Mental health experts testifying on behalf of Moore contended that medical standards on intellectual disability have changed over time. Under the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, published in 2013, Moore had substantial intellectual deficiencies and adaptive problems.

A state expert, meanwhile, examined Moore and concluded there was a greater probability than not that Moore suffers from borderline intellectual functioning, but that she did not have the data to support a diagnosis of “mental retardation” because of Moore’s strong adaptive functioning.

The state trial judge, relying on the DSM-V and recent standards of the American Association on Intellectual and Developmental Disabilities, concluded that Moore had an intellectual disability and could not be executed.

In 2015, the Texas Court of Criminal Appeals, the state’s highest court for criminal matters, overturned the trial judge and reinstated Moore’s death penalty. The court relied on a 1992 standard of the AAIDD as well as a legal standard it developed itself in the wake of the Atkins decision.

In that 2004 decision, Ex parte Briseno, the Texas high court said that prevailing mental health standards did not bind the state’s courts.

“We, however, must define that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty,” the Court of Criminal Appeals decision said. “Most Texas citizens might agree that [John] Steinbeck’s Lennie [from the novel Of Mice and Men], should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. 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?”

This “Lennie standard” has been the focus of criticism, including from the bench on Tuesday.

“Lennie was working on a farm,” Justice Sonia Sotomayor reminded Keller, the state solicitor general. “And the state had no problem in saying that Lennie, even though he could work, earn a living, plan his trying to hide the death of the rabbit he killed, that he could do all of those things, and yet he was not just mildly, but severely disabled.”

Referring to the state mental health expert’s observation that Moore had an adaptive ability to perform some tasks for money, Sotomayor asked, “Why is the fact that [Moore] could mow lawns and play pool indicative of a strength that overcomes all the other deficits” he was found to have?

Keller responded by emphasizing an argument in his brief that the reference to Lennie in the Court of Criminal Appeals’ 2004 opinion was fleeting and irrelevant to the standard it adopted for evaluating intellectual disability.

“Lennie, the character from Of Mice and Men, was never part of the test,” Keller said. “It’s not part of the test. It was an aside in the [Briseno] opinion.”

He noted that the Court of Criminal Appeals did not mention Lennie in its decision last year in Moore’s case.

“The Lennie standard has never been part of a standard,” Keller said. “That’s one of the most misunderstood aspects of the briefing here.”

A decision in the case is expected by next June.

A version of this news article first appeared in the On Special Education blog.