The State of Texas has filed their Merits Brief in Moore. At issue is how Texas defines intellectual disability (ID) for purposes of exclusion from eligibility for the Death Penalty. Such claims are called Atkins claims - named after the case in which the SCOTUS decided this category of Defendant is ineligible for the death penalty.
Moore is significant for many reasons. A decision against the State of Texas would impact prosecutors who increasingly wrestle with doubts about the use of the Death Penalty, and a subtle, but growing number of taxpayers becoming more vocal in their desire to limit Death Penalty prosecutions. Decreased use of the Death Penalty buttresses the argument that a national consensus exists for abolishment under the 8th Amendment as fewer states are utilizing it, and within those states, use is restricted to a handful of counties.
A defeat for the State of Texas in Moore would further this push. Why? If the State of Texas loses, every Texas Death Penalty case with an ID claim decided since 2002 will potentially be found to have been decided under an erroneous legal standard. Evidence of the effect SCOTUS consideration of Moore has already had in Texas can be found in the fact that since the grant of certiorari the Texas Court of Criminal Appeals (CCA) has granted stays for every execution scheduled.
In addition to Moore's Merits Brief, discussed in Part I, of this series, amici Briefs in favor of Moore's position have been filed by the two most important organizations that diagnosis ID and by legal organizations such as the American Bar Association and the American Civil Liberties Union (ACLU), among others.
Neither the Eighth Amendment nor this Court’s decisions in Atkins and Hall [v. Florida] require States to adhere precisely to a particular organization’s clinical definition of intellectual disability. Atkins gave States latitude to develop substantive standards implementing the prohibition on executing persons with intellectual disability. Hall explained that States must consider the views of medical experts so that their Atkins standards are 'informed by the medical community’s diagnostic framework.' But neither case directed States to strictly follow a particular clinical definition of intellectual disability. To the contrary, the Court confirmed in Hall that those definitions 'do not dictate' the Atkins analysis, and '[t]he legal definition of intellectual disability is distinct from a medical diagnosis.' (citations omitted).Hall v. Florida held the Florida ID Death Penalty scheme unconstitutional because of the use of a strict cutoff of 70 for the first of the three accepted clinical definitions of ID - intellectual functioning. Both the leading authorities on ID, the American Psychological Association (APA) and the American Association for the Intellectual and Developmentally Disabled (AAIDD) incorporate a Standard Error of Measurement (SEM) into intellectual functioning (commonly called IQ) testing. Florida did not, and SCOTUS held in Hall this failure doomed their Atkins claim procedure.
The State of Texas briefing points out that SEM is incorporated as part of Texas' Atkins claims. It is the second ID clinical prong inquiring into whether an individual's adaptive behavior deficits meet certain clinical standards, where the legal issue before SCOTUS exists. The most difficult argument for Texas to overcome is that deviation from clinically accepted standards regarding adaptive behaviors - use of the so called Briseno factors - is logically the same constitutional defect present in Hall. This argument is straightforward: Like Florida's non-constitutional use of a strict cut off in intellectual functioning testing, Texas' standard uses non-medically accepted standards in assessing adaptive behaviors.
Adaptive behaviors standards assess whether an individual has an inability (deficits) to adapt aspects of their behavior - called "domains" clinically - to the community that surrounds them. The strongest argument Moore and the amici make is that the Briseno factors improperly weigh adaptive strengths against adaptive deficits instead of considering deficits alone. This argument hammers that this non-medically accepted standard renders all but the most severely ID eligible for the Death Penalty in Texas, rendering the substantive promise that all ID are ineligible for the Death Penalty meaningless.
Texas's Brief rebuts this argument as follows:
The CCA also correctly noted that Texas’s requirement that adaptive deficits be 'related' to intellectual impairments 'is consistent with the APA’s current position on this issue.' Thus, although the AAIDD 11th definition omits that requirement, the CCA chose to retain it. After noting those definitional consistencies, the CCA relied on both the AAIDD 11th and the DSM-5 to explain specific clinical concepts relating to its analysis of petitioner’s evidence. Having thus 'consider[ed]' various clinical definitions of intellectual disability and “consult[ed]” them where it deemed appropriate, the CCA complied with Hall. The CCA’s informed decision not to go further and adopt either the AAIDD 11th or DSM-5 wholesale as Texas’s legal standard presents no error. (citations omitted).The State also mined the evidentiary record to make what amounts to a legal sufficiency argument - that the evidence adduced at Moore's evidentiary hearing established Moore did NOT meet even the clinical definitions of ID under either the DSM-5 or the AAIDD 11th. Before going into that detailed fact based argument, I will wait for Moore's Reply Brief to see how it addresses this issue. It is noteworthy, however, that the habeas judge that heard the evidence regurgitated by the State in their Merits Brief decided Moore met the clinical definition of ID.
Finally the State addressed what has made the CCA's decision in Briseno media ready for ridicule. The CCA, unfortunately, referenced John Steinbeck's intellectually compromised Lennie Small in the novel Of Mice and Men in Briseno.
In all events, any assessment of the optional Briseno factors—or Texas’s separate three-part test for intellectual disability—should not be tainted by then strained efforts of petitioner and amicus ACLU to link them to Briseno’s fleeting mention of the character 'Lennie' from the novel Of Mice and Men. That lone literary reference has never been part of Texas’s Atkins standard....[The] “Lennie” comment should be understood for what it actually was: an aside. If redacted, the meaning of the paragraph would be unchanged—the CCA did not want to adopt an Atkins standard without consulting guidance from the Legislature. The remark has nothing to do with the pre-existing definitions of intellectual disability that the CCA endorsed, nor does it inform the optional Briseno evidentiary factors that the court described later in the opinion. (citations omitted).As strong as I feel about the idiocy of the Briseno factors, the State of Texas is correct here. Although it probably was a bad idea to reference the fictional character, the reference was, in fact, an aside in Briseno. The APA and the AAIDD's amici briefs wisely stay away from the reference, hewing instead to the problems in the science. The same cannot be said of the ACLU's amicus brief. The Briseno factors (which have never been treated as "optional" by trial or appellate courts) are scientifically flawed. Attempting to leverage this unfortunate literary reference only diminishes the intellectual integrity of exposing those flaws.