Thursday, August 4, 2016

UPDATED (with edits) Texas' Intellectual Disability Idiocy - Part I

UPDATED 08/05/2016: This post has been edited. Additional substantive information has been added and grammar corrected. I was in too much of a hurry to post yesterday. Apologies. The subject matter is too important not to be more careful.

This is the first of several posts regarding the next assault on the Texas Death Penalty scheme. The assault is led by way of Moore v. Texas, a case currently set to be decided during the October 2016 term of the United States Supreme Court (SCOTUS).

The legal question presented and accepted by SCOTUS in Moore:
Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed
 The Intellectually Disabled are not eligible for the Death Penalty. If a Capital Murder defendant is claimed to have ID, it is called an Atkins claim. A couple of good primers on what an Atkins claim is, and Texas' outlier approach to defining ID for Death Penalty purposes can be found here and here.

Texas' outlier approach is based on how intellectually disability (ID) is defined for Death Penalty purposes. The two leading organizations on ID diagnostic criteria are the American Association on Intellectual and Developmental Disabilities (AAIDD) and the American Psychiatric Association (APA). Their respective publications defining clinical criteria for ID are, Intellectual Disability, Definition, Classification, and Systems of Support (11th Ed.) and the Diagnostic and Statistical Manual (5th Ed.). Both publications define with precision "adaptive behaviors," 1 of the 3 diagnostic criteria in making the ID diagnosis.

Texas does not follow the AAIDD and the APA criteria in defining adaptive behaviors, at least not rigidly. Instead, the benchmark used in Texas are 7 factors listed in a case styled Ex parte Briseno. These "Briseno factors" are appended on to the the clinical criteria from the AAIDD and APA. The Briseno factors and their inconsistency with Atkins are detailed in a extremely readable 2016 Texas Law Review Note by Hensleigh Crowell.

Ms. Crowell's Note analyzes how the CCA came to mistakenly square the factors in Briseno with the SCOTUS decision in Atkins:
The CCA’s confusion seems to come from a misreading of a key sentence in Atkins, in which the Court states that '[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.' This sentence, properly read, speaks only to the need for states to develop procedures with which to sort out individuals claiming to be intellectually disabled, but who are in fact not intellectually disabled. The 'range of mentally retarded offenders about whom there is a national consensus' seems plainly to refer to all individuals who meet the professional definition of intellectual disability, which is referenced multiple times in the Court’s decision. However, the CCA misread this sentence as stating that not all individuals who in fact are intellectually disabled are so impaired as to fall within the range for which there is a national consensus. Relying on this misreading, the CCA was able to justify creating a substantive definition of the class of individuals protected by Atkins—a different and narrower definition than the one endorsed by the Supreme Court. The result in Texas has been the continual denial, in contravention of Atkins, of valid claims of intellectual disability in Texas. (footnotes omitted).
If Briseno resulted from a misreading of Atkins, it should be added the grant of cert in Moore came only after the SCOTUS decision in Hall v. Florida. If the CCA had been paying attention, Hall was a shot across the CCA's bow regarding the Briseno factors. Moore was their chance to right the ship after Hall was decided by SCOTUS. However, the CCA seems to have had a tin ear, and as a result, the whole of Atkins claims decided under the Briseno factors in Texas may be subject to re-litigation if the State loses in SCOTUS.

Moore's SCOTUS merits Brief was filed on Thursday, July 28, 2016. The Brief ended this way:
As this Court recently reiterated in Hall, '[t]he death penalty is the gravest sentence our society may impose.' If that sentence is to be imposed on a person claiming intellectual disability, States must assess that claim according to a standard that is informed by the current views of the medical community. Texas, however, refuses to do so. Instead, it deploys its non-clinical Briseno factors to conclude that individuals, like Moore, are not intellectually disabled for Eighth Amendment purposes in Texas, even if they are intellectually disabled under current medical standards (as the state habeas trial court determined here) and would therefore be exempt from execution in other states.
Because nothing in Atkins or Hall authorizes the states to narrow the scope of the substantive Eighth Amendment right afforded by this Court by defining intellectual disability in a way that encompasses only a subset of defendants who are intellectually disabled under current clinical standards, the CCA’s use of its Briseno factors—which conflict with current medical standards—to deny Moore’s Atkins claim provides yet an additional ground for reversal and further reflects and aggravates the constitutional error from the CCA’s rejection of current medical standards.
The merits briefing from the State of Texas is due September 6, 2016. It should be an interesting read. Will the State moor itself to the CCA reasoning outlined above or will it come up with something different? More on this important case once the State of Texas files its briefing.

Oral Arguments have not been scheduled.


  1. It certainly appears that SCOTUS may be setting-up Briseno for the kill. If so, it's been long overdue!

    1. FYI, Adrienne McFarland, from the old days at the Brazos County Attorney's Office, is on the AG's Brief for the State of Texas in Moore, as well as other big Texas DP case this SCOTUS term, Buck v. Stephens.