Tuesday, June 7, 2016

The CCA's Tin Ear

Yesterday, the Supreme Court of the United States (SCOTUS) granted certiorari in two Texas death penalty cases. The first, Buck v. Stephens, involves race and the death penalty. It has, and will, receive much publicity because of the racially tinged testimony appearing in the case. However, Moore v. Texas, the other case for which SCOTUS granted certiorari, has greater long term potential for changing existing law.

The death penalty cannot be constitutionally assessed against the intellectually disabled (ID). It is in defining who is ID, and therefore ineligible for the death penalty that has caused trouble. 1 of the 3 clinical diagnostic criteria for ID is that a person must lack the ability to adapt their behavior in a meaningful way to the community around them. These are called, unsurprisingly, "adaptive behaviors."

Texas, for more than 10 years has used it's own adaptive behavior criteria for defining who is and is not ID for eligibility for the death penalty. In determining adaptive behaviors, we have NOT used the clinical criteria, but instead those factors listed in a case decided by the Texas Court of Criminal Appeals (CCA) called Ex parte Briseno. There is no telling how many Texas death penalty ID claims have been determined using the so called Briseno factors, but they are literally hundreds.

The CCA gave scant attention to Moore's claims that Briseno, and indeed, the entirety of the current Texas scheme for assessing ID, is inconsistent with what SCOTUS requires in defining who is ID and ineligible for the death penalty. Judge Elsa Alcala's lone dissent in the CCA set up Monday's SCOTUS cert grant. Like so much lately, Judge Alcala's ear is much more in tune with SCOTUS than those of her brother and sisters on the CCA.

I believe the SCOTUS grant in Moore signals Briseno's eventual demise. If that happens, a spate of new death penalty claims will torrent down alleging previous determinations of ID were improperly decided under Briseno's erroneous factors. This will happen, in part, because the CCA refused to listen to the the people who make diagnosis of ID their life work. It will happen also because the CCA refused to listen to Judge Alcala.

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