Moore v. Texas – Courts Must Use Legitimate Diagnostic Factors When Considering Whether a Death Row Inmate has a Mental Disability, and Cannot Ignore Established Medical Guidelines

In Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. _____, the United States Supreme Court held, among other things, that states cannot execute someone who is mentally disabled.  The Court also left to the states the task of determining whether a death row inmate has a mental disability that could prevent their execution.  Moore v. Texas, 581 U.S. _____ (2017), decided on March 28, 2017, clarifies this aspect of Atkins and Hall.  Briefly, in Moore, the Court held that state courts must utilize established diagnostic criteria when ascertaining whether a death row inmate has a mental disability.  In reaffirming its prior holdings that executing someone with a mental disability is unconstitutional, the Court noted that even mild mental or intellectual disabilities are disabilities, and states cannot execute anyone within the entire category of intellectually disabled offenders.

In 1980, Moore and two others robbed a supermarket in Houston.  At the supermarket, Moore and the others approached a courtesy booth that held two employees.  One of them realized that a robbery was taking place and started to scream.  Moore shot her in the head and killed her.  He fled, was arrested after 10 days, charged with capital murder, tried and sentenced to death by a jury.  Moore’s appeals spanned the next three decades.  In 2014, after a two-day hearing, a state habeas court concluded that Moore had an intellectual disability.  The Texas Court of Criminal Appeals (“CCA”), the final arbiter of habeas petitions in that state, rejected this conclusion and held its own hearing.    The CCA applied the criteria set forth in a 2004 Texas case, Ex Parte Briseno, which are as follows:

  • Did those who knew the defendant well during his developmental stages (family, friends, educators, employers, and other authorities), believe he was mentally retarded, and act in accordance with that assessment;
  • Has the defendant formulated and carried out plans, or is their conduct impulsive;
  • Does the defendant’s conduct indicate that they are a “leader” or “follower”;
  • Are the defendant’s responses to external stimuli rational and appropriate;
  • Are the defendant’s responses to oral or written questions on point, or does s/he wander from one subject to the next;
  • Can the defendant lie effectively; and
  • Did the underlying offense require planning, forethought and complex execution?

Using these factors, the CCA conducted an IQ test of Moore, and he scored a 74.  The Supreme Court observed that the standard error for IQ testing is five points in either direction, so Moore had an IQ within the range of 69 to 79.  In Atkins, the Court observed that an IQ lower than 70 is indicative of a disability.  The CCA was aware of the lower score, but believed that because Moore had shown a general ability to get along notwithstanding his disability, such as by working, he could be executed without violating Atkins.

The Court recalled that Atkins held that executing the mentally disabled violates the Eighth Amendment’s ban on cruel and unusual punishment, but left it to the individual states to define what qualifies as an intellectual or mental disability.  Later in Hall, the Court narrowed the states’ discretion on this issue. finding that “where an IQ score is close to, but above, 70, courts must account for the test’s standard error of measurement.”  Thus, Moore had a mild mental disability since he had an IQ range of 69 to 79.

Against this backdrop, the Court found that executing Moore would violate the Eighth Amendment.  The Court also rejected the Briseno test set forth above, since it was based upon a lay, rather than a medical, understanding of what qualifies as a mental or intellectual disability.  The Court held that using the Diagnostic and Statistical Manual, fifth edition (DSM-V), with its more established and scientifically formulated criteria, would lead to more accurate conclusions on this crucial issue.

On a certain level, this case has limited applicability since most states have abolished the death penalty.  However, it still reminds us that courts can experience great difficulty in determining whether and to what extent a defendant suffers from a mental health issue that can and should somehow impact on the disposition of their case.

New Brunswick, New Jersey criminal defense attorney James S. Friedman represents criminal defendants with mental health issues in courts throughout New Jersey and New York City.





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